ii\ 


ftB<-2  819lf 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


PWECetVED 


SHIPPERS  AND  CARRIERS 

OF 

INTERSTATE  AND  INTRASTATE  FREIGHT 


Second  Edition 


SHIPPERS  AND  CARRIERS 

OF 

INTERSTATE  AND  INTRASTATE 
FREIGHT 


By 
EDGAR  WATKINS,  LL.  B. 

Of  thk  Atlanta   Bar 


Atlanta 

THE  HARRISON  COMPANY 

Law  Book  Publishers 

1916 


T 


Copyright  1909  and   1916 

by 
EDGAR  WATKINS 


2'  /f-  a>^ 


PREFACE. 


No  branch  of  the  law  is  more  important  than  that  relating  to 
the  rights  and  duties  of  shippers  and  carriers,  and  no  branch  of 
the  law  is  less  generally  known.  The  purpose  of  this  book  is  to 
assist  those  who  may  be  called  upon  to  advise  as  to  such  rights 
and  duties  to  an  understanding  of  this  interesting  phase  of  the 
law. 
^  In  approaching  the  subject  the  experience  of  an  active  practi- 

*^  tioner  was  drawn  upon  to  determine  what  would  be  most  use- 

ful, not  only  to  the  legal  profession,  but  to  traffic  men,  whether 
•^         in   the   employ   of   the   carriers   or   of   those   bureaus   organized 

throughout  the  country  to  aid  and  advise  shippers. 
^  From  this  experience,  it  was  thought  that  where  the  state  of 

"~~  the  authorities  justified,  the  law  should  be  given  as  nearly  as 
might  be  in  the  language  of  the  courts  of  final  authority.  For 
this  reason,  where  questions  have  been  definitely  determined,  lib- 
eral quotations  have  been  inserted. 

Many  questions,  however,  aflfecting  the  subject  of  this  book 
have  not  yet  been  settled.  Where  this  is  true,  the  opinions  of 
the  federal  courts,  the  Interstate  Commerce  Commission  and 
state  courts,  have  been  referred  to  and  discussed.  In  this  way 
it  has  been  sought  to  deduce  the  principles  of  the  law. 

The  Act  to  Regulate  Commerce  has  been  annotated,  not  only 
with  the  decisions  of  the  courts,  but  also  with  the  opinions  of  the 
Interstate  Commerce  Commission.  This  will  enable  one  desiring 
to  investigate  a  particular  provision  of  that  act  to  trace  the  con- 
struction thereof  by  the  references  which  have  been  made  thereto 
by  the  tribunals  whose  duty  it  is  to  enforce  this  great  statute. 

The  Sherman  and  Clayton  Anti-Trust  Statutes,  the  Twenty- 
Eight  Hour  Law,  and  other  acts  affecting  the  question  are  cited 
and  discussed  in  so  far  as  they  relate  to  the  subject  under 
investigation.  Statutes  such  as  the  Safety  Appliance  x\cts,  the 
Employers'  Liability  Act,  the  Hours  of  Service  Act,  the  Federal 
Trade  Commission  and  Anti-Trust  Acts,  and  other  acts,  a  knowl- 
edge of  which  is  necessary  to  those  who,  as  practitioners  or  other- 

V 


VI  Preface 

wise   have   to   do   with   the   enforcement   of   those   laws,   or   are 
required  to  advise  or  act  with   reference  thereto,  are  inserted. 

Because  the  conference  ruhngs  of  the  Interstate  Commerce 
Commission  are  of  such  general  use  and  ,are  not  always  avail- 
able, and  adopting  the  suggestions  of  lawyers  and  traffic  of- 
ficials familiar  with  the  practice  before  the  Commission,  these 
conference   rulings  have  been  copied   following  the  appendices. 

While  few  lawyers  have  given  special  attention  to  the  ques- 
tions here  discussed,  the  widening  scope  of  interstate  commerce 
makes  it  necessary  that  all  practitioners  shall  be  ready  to  advise 
clients  as  to  their  rights  and  liabilities  growing  out  of  the  law 
relating  to  transportation. 

Claims  for  overcharge,  for  loss  and  for  damage  on  shipments 
moving  from  one  state  to  another  arise  in  the  business  of  most 
manufacturers,  jobbers  and  merchants.  The  law  fixing  the  rights 
growing  out  of  such  shipments  is  found  in  the  statutes  and  de- 
cisions of  the  Federal  Government.  To  make  the  Laws  more 
easily  available  and  understandable  is  the  purpose  of  this  work. 
With  what  success  that  purpose  has  been  effected  must  be  deter- 
mined by  those  who  may  make  use  of  what  is  herein  set  down. 

Intrastate  transportation  is  so  closely  related  to  that  which  is 
interstate,  that  a  new  chapter  has  been  added,  in  which  is  dis- 
cussed intrastate  transportation  in  so  far  as  it  affects  directly  or 
indirectly  the  principal  subject  of  the  book.  The  author  desires 
to  acknowledge  the  valuable  assistance  of  ]\lr.  Henry  B.  Amies, 
who  has  assisted  in  revising  the  manuscript. 

Edgar  Watkixs. 
W'ashington,  D.  C,  October,  1915. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 


STATE  REGULATION  OF  CARRIERS  ENGAGED  IN   INTER- 
STATE COMMERCE. 

§     1.  Scope  of  Chapter. 

2.  Interstate  Commerce  Defined. 

3.  Power    of    Congress    Exclusive,    When. 

4.  Power    of    the    States    Indirectly    to    Affect    Interstate    Com- 

merce. 

5.  Commerce   Exclusively  Within   the   Control   of   the   States. 

6.  All   Commerce   Subject   to   Regulation. 

7.  Eminent  Domain. 

8.  States  May  Establish  Means  for  Interstate  Transportation. 

9.  Regulation    of    Facilities — Depots. 

10.  Regulation   of   Facilities — Terminal   Roads. 

11.  State  Laws  Forbidding  the  Consolidation  of  Competing  Car- 

riers. 

12.  Regulation   of   Facilities — Spur  Tracks. 

13.  Requiring    Physical    Connections    Between    Carriers. 

14.  Delivery   over  Connecting  Tracks. 

15.  Regulating   Crossings. 

16.  Elevator   Charges. 

17.  Through  Routes  and  Joint  Rates. 

18.  Regulation   of   the   Movement   of  Trains.      Sunday   Law. 

19.  Same  Sul)ject.     Requiring  the  Operation  of  a  Particular  Train. 

20.  Same   Subject.      Speed   of  Trains. 

21.  Same  Subject.     Requirement  That  Trains  Shall  Stop  at  Par- 

ticular Stations. 

22.  State   Regulation   of   Carriers   and   Their   Employees. 

23.  Blowing    Whistle    and     Checking    Speed      at   Crossings. 

24.  Furnishing  Cars   for  the   Receipt   and   Delivery  of   Shipments. 

25.  Same   Subject.     Rule   Since   Hepburn   Act. 

26.  Same   Subject.     Rule   Established. 

27.  Requirements   as    to   Accounting   and    Reports. 

28.  Transmission  and  Delivery  of  Telegraph  and  Telephone  Mes- 

sages. 

29.  Separate   Coach   Laws. 

30.  Posting  Time   of  Trains. 

31.  Laws  to  Promote  the  Security  and  Comfort  of  Passengers. 

32.  Laws  Limiting  or  Enlarging  the  Common  Liability  of  Carriers. 

33.  Same   Subject.     Liability   to   Employees. 

34.  Same  Subject.     Liability  for  Loss  or  Damage  to  Shipments. 

VII 


VIII  Table  of  Contents 

35.  Penalties  for  Failure  to  Pay  Claim. 

36.  Requiring  Railroads  to  Perform  Transportation  Service. 

37.  Sale    and    Regulation    of    Passenger    Tickets. 

38.  Same  Subject.     Mileage  Books. 

39.  Free  Transportation. 

40.  Routing  Freight. 

41.  When  Interstate  Transportation  Begins  and  Ends. 

42.  Attachments   and   Garnishments. 

43.  Rates. 

44.  Intrastate   Rates   Which   Affect    Interstate    Rates. 

45.  Limitations    on    the    Power    of    States    to    Regulate    Intrastate 

Rates. 

46.  Property  Basis  for  Returns. 

47.  When    Does    a    Rate    Violate    Rights    under    the    Fourteenth 

Amendment? 

48.  Rates.     Evidence   That   a   Rate   Is    Confiscatory.     Rates   on   a 

Few^    Commodities. 

49.  Same   Subject.     Relative    Cost   of   Different    Kinds    of  Trans- 

portation. 

50.  Testing  a  Rate  by  Use  to  Determine  Whether  or  Not   It  Is 

"  Confiscatory. 

51.  Issuance   of   Stocks   and    Bonds. 

52.  Long  and   Short  Haul. 

53.  Ferries. 

54.  Bridges. 

55.  Regulating  Charges  for  Transportation  by  Water. 

56.  Regulating    Pilotage,    Ports,    Harbors    and    Vessels. 

57.  Boards  of  Trade  and  Exchanges. 

58.  Inspection.      Quarantine,    Game,    Food.    Liquor,    and    Lottery 

Laws. 

59.  Taxation,    Including   License   Taxes. 

60.  Procedure   to  Test  the   \'alidity  of  State   Regulations. 

CHAPTER  II. 

VALIDITY     AND    SCOPE    OF    THE    ACT    TO     REGULATE 

COMAIERCE. 

§  61.  Common    Law    Obligations    of    Common    Carriers. 

62.  Power    of    Congress    over    Interstate    Commerce. 

63.  Constitutionality   of  the  Act   to   Regulate   Commerce. 

64.  Reasons   for   the   Act   to   Regulate   Commerce. 

65.  Carriers    Included    in    the    Act. 

66.  Carriers'   Duties   under   the   Act. 

67.  What    Transportation    Included    in    the    Act. 

68.  Transportation   Included   in   the  Act,   continued. 

69.  Same    Subject. 

70.  Powers  and  Procedure  of  the  Interstate  Commerce  Commission. 

71.  Same   Subject. 


Table  of  Contents  ix 

72.  Switch    Connections. 

73.  Damages   and    Penalties    for    Misquoting   a   Rate. 

74.  Penalties. 

75.  Investigations   by   the   Interstate    Commerce   Commission. 

76.  Additional    Power    Given    the    Interstate    Commerce    Commis- 

sion. 

77.  Commission  May  Suspend  an  Advance  in  Rates. 

78.  Reports  of  Carriers. 

79.  Court   Procedure  with   Reference  to  the  Orders  of  the   Com- 

mission. 


CHAPTER  III. 

ALL   CHARGES   FOR  SERVICES   RENDERED   BY    COMMON 
CARRIERS  IN  THE  TRANSPORTATION  OF  PERSONS 
OR  PROPERTY  OR  IN  CONNECTION  THERE- 
WITH MUST  BE  JUST  AND 
REASONABLE. 

§  80.  All   Charges   Must   Be   Reasonable. 

81.  Classification. 

82.  Cost    of    Carrier's    Equipment. 

83.  Cost  of  Carrier's  Equipment.     What  Is  a  Reasonable  Return. 

84.  Same  Subject.     Difficulties   in  Determining  the  Question. 

85.  Cost    of    Service 

86.  Cost.     When    Carrier's    Duty   to    Furnish    Service. 

87.  Cost   of   Service,   Continued. 

88.  Value   of   Service. 

89.  Same  Subject.     Use  to  Which  Commodity  Put. 

90.  Value  of  the  Commodity,   Its  General  Utility  and  Danger  of 

Loss. 

91.  Value  of  the   Commoditj-.     Difference  Between   the  Raw  and 

the   Manufactured   Product. 

92.  Competition     or     Its     Absence     Considered     in     Determining 

Reasonable    Rates. 

93.  Same    Subject. 

94.  Same    Subject.      Rule    Since    1910. 

95.  Same    Subject.      Conclusion. 

96.  Rates  Affected  by  Amount   of  Tonnage. 

97.  Same   Subject.     Limitations   on   Rule. 

98.  Density   of   Traffic. 

99.  Distance  and   Rate  per  Ton  Mile. 

100.  General    Business    Conditions. 

101.  Estoppel. 

103.  Rates  Long  in  Existence  Are  Presumed  to  Be  Reasonable. 

103.  Same    Subject. 

104.  Voluntary  Reduction  of  Rates. 

105.  Same   Subject.     Act  June  18,  1910. 


Table  of   Contents 

106.  Grouping  Territory  and   Giving   Each   Group  Same   Rate   Le- 

gal under  Some  Circumstances. 

107.  Grouping  Producing  Points  and  Making  Zones  Taking  Same 

Rates. 

108.  Basing  Point  System. 

109.  Same   Subject.      Breaking   Rates. 

110.  Comparison   Between   Different   Lines   as   a   Aleans   of   Deter- 

mining Correct  Rate. 

111.  Car  Load  and  Less  than   Car  Load  Movements  as  Affecting 

the   Rate. 

112.  Establishing    Car    Load    Rates. 

113.  Same  Subject.     Rule  in  Duncan   Case   Criticised. 

114.  Same    Subject.      Proper    Differential    Between    Rates    on    Car 

Load  and   Less  than   Car   Load   Freight. 

115.  Car   Load   Minima. 

116.  Train  Load  Rates. 

117.  Relation  of  Through  Rates  to  the  Sum  of  Local  Rates. 

118.  Proportional    Rates. 

119.  Through     Rate     Must     Not     Exceed   Aggregate   of   Intermedi- 

ate Rates. 

120.  Through    Routes    and   Joint    Rates. 

121.  Same   Subject.     Amendments   of   1910   and   1912. 

122.  Rates    on    Commodities   Requiring   Refrigeration. 

123.  Rates    on    Returned    Shipments. 

124.  The  Public  Interest  Must  Be  Considered  in  Making  Rates. 

125.  General   Principles   Applicable    to    the    Question.     What    Is   a 

Reasonable   Rate? 

126.  Same    Subject.      Some    Statements    of   the    Commission   as    to 

Such   General   Principles. 

127.  Same    Subject.      Illustrative    Cases. 

128.  Same    Subject.      Discussion    of    Principles    in    Chicago    Live 

Stock    Exchange    Case. 

129.  Same   Subject.     Rate   Considered  in  and  of  Itself. 

130.  Same  Subject.     Commission  Not  Bound  by  Technical   Rules. 

131.  Same   Subject.      Summary. 


CHAPTER  IV. 

EQUALITY  IN  RATES. 

§   132.  Scope  of  Chapter. 

133.  Common  Law  as  to  Equality  in  Rates  by  Carriers. 

134.  Same  Subject.     Damages. 

135.  Comparison  of  the   English   Railway  and   Canal  Act   with   the 

Act  to  Regulate   Commerce. 

136.  Discrimination  Forbidden. 

137.  Discrimination   against    Individuals. 

138.  Same  Subject. 

139.  Same   Subject.      Construction   by   the    Commission. 


Table  of  Contents  xi 

140.  Same  Subject.     Allowances  to  Shippers. 

141.  Trap   Car   Service. 

142.  Peddler  Cars. 

143.  Car  Spotting. 

144.  Undue   Preferences   in   Favor  of  Persons   or   Localities. 

145.  Same    Subject.     Application    of    Section    Made    by    the    Com- 

mission. 

146.  Discrimination  Against  Traffic. 

147.  Same    Subject.      Discrimination    Beyond    the    Control    of    the 

Carrier. 

148.  Facilities  for  Interchange  of  Traffic  and  Rates  and  Charges  to 

Connecting    Lines    Must    Be   without   Undue    or   Unreason- 
able Preference. 

149.  Same  Subject.     Statute. 

150.  Same  Subject.     Statute  and  Proviso. 

151.  Through  Routes  and  Joint  Rates. 

152.  Discrimination    by    Charging    More    for    a    Shorter    Than    a 

Longer   Haul. 

153.  Long  and   Short   Haul.      Old   Law   Construed.      Definite   Con- 

struction. 

154.  Long  and   Short  Haul   Clause  under  Act  of   1910. 

155.  Fourth    Section.      Relationship    Between    Through    Rates    and 

Intermediate  Rates. 

156.  Discrimination  Between  Car  Loads  and  Less  than  Car  Loads. 

157.  Bulked  Shipments. 

158.  Car  Loads,  Ownership  of. 

159.  Train  Loads. 

160.  Classification    of    Commodities    Should    Be    without    Discrimi- 

nation. 

161.  Uniform  Classification. 

162.  Power  of  the   Commission  over   Classification. 

163.  Milling   in   Transit. 

164.  Rebilling. 

165.  Rebilling — Found   Illegal. 

166.  Rebilling   Illegal   Only   When   Unjustly   Discriminatory. 

167.  Rebilling.      Conclusion. 

168.  Payments    to    Elevators. 

169.  Transit   Privileges — Generally. 

170.  Allowances  to  Tap  Line  Railroads. 

171.  Allowances   to   Industrial   Tracks. 

172.  Illegal    for   Carriers   to   Transport    Commodities    Produced    or 

Owned  by  Them   or  in  Which   They   Are   Interested. 

173.  Commodities    Clause   of  Act  of  1906. 

174.  Cars   Must   Be   Furnished   without  Discrimination. 

175.  Same    Subject.      Principles    Applied   by    the    Commission. 

176.  Freight    Charges   Must   Be    Collected   without   Discrimination. 

177.  Right  of  Carrier  to  Route  Shipments  Beyond   Its  Own  Ter- 

minus. 

178.  Discrimination    in    Billing. 


XII  Table  of  Contents 

179.  Tariffs  of  Rates  Must  Be   Printed,  Posted  and  Maintained. 

180.  Same    Subject.     Misquoting    Rates. 

181.  Different  Rates   over  the  Same  Line  in  Opposite   Directions. 

182.  Discrimination   by    Granting   Free    Service. 

183.  Basing  Points,   Group   Rates   and   Zone   Rates. 

184.  How   Far  a  Rate   Made  by  a   State   Relieves   a   Carrier   from 

the  Duty  to  Serve  Communities  with  Legal  Equality. 

185.  Commutation,   Mileage   and   Party   Rate   Tickets. 

186.  Rebates. 

187.  Same  Subject.     Corporation  Punishable. 

188.  Summary. 

CHAPTER  V. 

ENFORCEMENT   BY   THE    COMMISSION   OF   THE    ACT   TO 
REGULATE   COMMERCE. 

§  189.  General   Statement   of  the   Functions   of   the   Interstate    Com- 
merce  Commission. 

190.  Appointment   and    General    Duties    of   the    Commission. 

191.  Switch   Connections.     Duty  of  Carriers. 

192.  Switch   Connections.     Powers  of  the   Commission. 

193.  Industrial    Switches   and    Railways. 

194.  Switch   Connections  with  Carriers  by  Water. 

195.  Through    Routes. 

196.  Division    of   Joint    Rates. 

197.  Allowances  to   Shippers  for   Services   and   Facilities. 

198.  Distribution  of  Cars. 

199.  Long  and  Short  Haul  Provisions,  History  of. 

200.  Relationship   of   Intermediate   and   Through    Rates. 

201.  Water    Competition. 

202.  Power  of  the  Commission  under  the  Fourth  Section. 

203.  Ownership  of  Water   Carriers  by   Railroads. 

204.  The    Commission's    Duties    with    Reference    to    Schedules    of 

Rates. 

205.  Damages. 

20G.  Damages — Power  of  the   Commission  to   Make  Award   of. 

207.  Awards  of  Damages  for  Charging  an  Unjust  and  Unreason- 

able   Rate. 

208.  Awards   of  Damages   for  Unlawful   Discrimination. 

209.  Damages   under   the   Fourth   Section. 

210.  Damages   for   Misrouting. 

211.  Damages — General    Statement. 

212.  Damages  for  Misquoting  a  Rate. 

213.  Damages,    to   Whom   Paid. 

214.  Damages,    by   Whom    Paid. 

215.  Damages — Protest   Unnecessary. 

216.  Damages — Interest    and    Attorney's    Fees. 

217.  Award   of  Damages  an   Inadequate   Remedy. 


Table  of  Contents  xiii 

218.  Damages,    Limitation    on    Complaint    for. 

219.  General    Investigation    by    the    Commission. 

220.  Same   Subject.     Amendment   of  1910. 

221.  Commission  May  Ask  the  Aid  of  the   Courts  to  Enforce  the 

Law. 

222.  Commission  Has  Power  to  Prescribe  Rates  for  the  Future. 

223.  Suspension   of  Rates,   Regulations  and  Practice. 

224.  Through   Routes  and  Joint   Rates. 

225.  Allowances    for    Services    or    Instrumentalities. 

226.  Powers   Enumerated,   Not   Exclude  Others. 

227.  Effect    of    Commission's    Orders. 

228.  Commission's    Control    Over    Its    Orders. 

229.  Commission    May    Employ   Attorne}'S. 

230.  Records  of  Commission. 

231.  Valuation  of  Railroad  Property. 

232.  Valuation,    How   Made. 

233.  Finality   and    Effect   of   Valuation. 

234.  Office    of    Commission. 

235.  Annual   Reports  from   Carriers. 

236.  Examiners. 

237.  Reports  by  the  Commission. 

238.  Lake  Erie  and  Ohio  River  Ship  Canal. 

239.  Parcel   Post. 

240.  Government  Aided  Railroads  and  Telegraph  Companies. 

241.  Common  Law  Remedies. 


CHAPTER  VI. 

PROCEDURE  OF  THE  INTERSTATE  COMMERCE  COMMIS- 
SION. 

§  242.  Scope    of    Chapter. 

243.  Switch    Connections. 

244.  Relief  under  the   Fourth   Section. 

245.  Water   Competition. 

246.  Railroad   Owned   Steamships. 

247.  Changes    in   Tariffs. 

248.  Forms    of   Tariffs. 

249.  Through   Routes. 

250.  Complaints  for  Damages. 

251.  Same  Subject — Order  of  Commission. 

252.  General    Investigations. 

253.  Procedure    in    Formal    Cases — Complaint. 

254:  Notice   before    Hearing.  * 

255.  Formal    Complaints — Answer. 

256.  Hearings  by  the  Commission. 

257.  Orders    Relating   to   Rates   and    Practices. 

258.  Suspension  of  Rates. 


XIV  Table  of  Contents 

259.  Practices  in  Suspension   Cases  Where  There  Exist  Intrastate 

Rates  Lower  than  Proposed  Increased  Interstate  Rates. 

2C0.  The  Weak  and  the  Strong  Roads. 

261.  Other    Orders. 

262.  Service  of  Orders  of  the  Commission. 

263.  Rehearings  by  the  Commission. 

264.  Valuation   of   Property. 

265.  Oral   Argument. 

266.  Estoppel   by   Former   Order   of   the    Commission. 

267.  Rules    of    Procedure    Prescribed    by    the    Commission. 

268.  Sessions    of    the    Commission    to    Be   Public — Its    Ofifices   in 

Washington. 

269.  Parties. 

270.  Complaints. 

271.  Answer. 

272.  Motion  to  Dismiss  in  the  Nature  of  a  Demurrer. 

273.  Service  of  Papers. 

274.  Amendment   to.  Pleadings. 

275.  Continuances. 

276.  Stipulations  Desirable  and  Must  Be  in  Writing. 

277.  Hearings. 

278.  Depositions,   How  Taken. 

279.  Attendance  of  Witnesses. 

280.  Documentary   Evidence. 

281.  Briefs  and  Oral  Argument. 

282.  Rehearings. 

283.  Free    Copies   of  Transcript   of   Evidence,   When    Furnished. 

284.  Orders  Must  Be  Complied  with  and  Notice  Thereof  Given  to 

the  Secretary  of  the   Commission. 

285.  Fourth   Section  Applications. 

286.  Suspension  of  Rate   Increases,   How  Obtained. 

287.  Secretary  to  Give  Information. 

288.  Address  of  the  Commission. 

289.  Form    of    Complaints. 

290.  Form  of  Answer. 

291.  Notice  of  Motion  to  Dismiss. 


CHAPTER  VII. 

ENFORCEMENT  BY  THE  COURTS  OF  THE  ACT  TO  REGU- 

•      LATE   COMMERCE,   INCLUDING  A  DISCUSSION  OF 

THE    EFFECT    GIVEN    BY    THE    COURTS  TO 

THE  ORDERS  AND  FINDINGS  OF  THE 

INTERSTATE  COMMERCE 

COMMISSION. 

§  292.     Jurisdiction  of  the  Courts  of  the  States  to  Enforce  Provisions 
of  the   Act  to  Regulate  Commerce. 
293.     Same  Subject.     Statutory  Provisions. 


TabIvE  of  Contents  xv 

294.  Same  Subject.     Awards  of  Damages. 

295.  Same  Subject.     Suit  for  Damages  Against  an   Initial   Carrier. 

296.  Compelling  a   Common   Carrier  to  Transport. 

297.  Jurisdiction.      General    Statement. 

298.  Commerce   Court. 

299.  Jurisdiction    of   the    Courts    of   the   United    States   to    Compel 

the   Attendance   of  Witnesses   Before   the    Commission   and 
Enforce  Obedience  to  Act. 

300.  Enforcement    of    Forfeitures. 

301.  Mandamus. 

302.  To  Enforce  Rights  under  Act  to  Aid  Railroads  and  Telegraph 

Companies. 

303.  Injunctions  in  Aid  of   Enforcement   of  Act. 

304.  Injunctions   Against  Unlawful   Rates   and   Practices. 

305.  Same   Subject.     Conclusion. 

306.  Same    Subject.      Effect   of  Amendment    of    1910. 

307.  Same   Subject.     Venue. 

308.  Jurisdiction  of  Suits  to  Set  Aside  Orders  of  the  Commission. 

309.  Grounds  upon  Which  Orders  of  the  Commission  May  Be  Set 

Aside. 

310.  Same      Subject.        Violations     of     the      Constitution — Fourth 

Amendment. 

311.  Violation    of   the    Fifth    Amendment. 

312.  Mistake   of   Law. 

313.  Lack    of    Jurisdiction. 

314.  The  Substance  and  Not  the  Form  of  the  Finding  Determines. 

315.  Disregard  of  the  Legal  Effect  of  Undisputed  Testimony. 

316.  Lack    of   Full    Hearing. 

317.  Awards   of  Damages. 

318.  Awards    of    Damages — Parties    and    Procedure. 

319.  Procedure  to  Enforce  or  Annul  Orders  of  the  Commission. 

320.  Interlocutory  Injunctions — Three  Judges  to  Hear  Application 

for. 

321.  Interlocutory  Injunctions — Notice  and   Hearing. 

322.  Interlocutory  Injunctions — Appeal  from. 

323.  Appeal   from    Final   Judgment. 

324.  Venue    of    Suits. 

CHAPTER  VIII. 

ACTS     OF    CONGRESS    INDIRECTLY     AFFECTING    INTER- 
STATE TRANSPORTATION. 

§  325.  Scope   of   Chapter. 

326.  Quarantine   Laws   Relating   to   Transportation. 

327.  Sherman   Anti-Trust   Law. 

328.  Clayton   Anti-Trust    Law. 

329.  Federal  Trade  Commission  Law. 

330.  Safety  Appliance   Law. 

331.  Hours  of  Service  Law. 


XVI  Table  of  Contents 

332.  Employers'    Liability   Law. 

333.  Arbitration  Law. 

334.  Breaking    Seals    of    Railroad    Cars    Containing    Interstate    or 

Foreign    Commerce. 


CHAPTER  IX. 
ACTS  REGULATING  COMMERCE. 

Including  act  approved  February  4,  1887,  chapter  104,  effective  April 
5,  1887,  24  Stat.  L.  379,  U.  S.  Comp.  Stat.  1901,  p.  3154,  3  Fed.  Stan 
Ann.  809,  et.  seq.     Known  as  the  Cullom  Act. 

Amendment  of  March  2,  1889,  25  Stat.  L.  855,  Chap.  382,  U.  S.  Comp. 
Stat.  1901,  p.  3158,  3  Fed.  Stat.  Ann.  852,  et.  seq. 

Amendment  of  February  10,  1891,  Chapter  128,  26  Stat.  L.  753,  U. 
S.  Comp.  Stat.  1901,  p.  3163,  3  Fed.  Stat.  Ann.  839. 

Amendment  of  February  8,  1895,  Chap.  61,  28  Stat.  L.  643,  U.  S. 
Comp.  Stat.  1901,  p.  3171,  3  Fed.  Stat.  Ann.  851. 

Act  February  11,  1893,  27  Stat.  L.  443,  Chap  83,  U.  S.  Comp.  Stat. 
1901,  p.  3173,  3  Fed.  Stat.  Ann.  855.     Known  as  the  Testimony  Act. 

Act  February  11,  1903,  Chapter  544,  32  Stat.  L.  823,  U.  S.  Comp. 
Stat.  Supp.  1907,  10  Fed.  Stat.  Ann.  199.  Known  as  the  Expediting 
Act. 

Act  February  19,  1903,  Chap.  708,  32  Stat.  L.  847,  U.  S.  Comp.  Stat. 
Supp.  1907,  p.  880,  10  Fed.  Stat.  Ann.  170.     Known  as  the  Elkins  Act. 

Act  February  25,  1903,  Chap.  755,  32  Stat.  L.  903,  10  Fed.  Stat.  Ann. 
173,  being  section  one  of  the  Appropriation  Act. 

Act  June  29,  1906,  34  Stat.  L.  584,  Chap.  3591,  U.  S.  Comp.  Stat. 
Supp.  1907,  p.  892,  Fed.  Stat.  Ann.  Supp.  1907,  p.  167.  Known  as  the 
Hepburn  Act. 

Act  June  30,  1906,  Chap.  3920,  34  Stat.  L.  798,  U.  S.  Comp.  Stat. 
Supp.  3907,  p.  900,  Fed.  Stat.  Ann.  Supp.  1907,  p.  382. 

Act  April  13,  1908,  35  Stat.  L.  60,  Chap.  143 

Act  of  June  18,  1910,  36  Stat.  L.  539,  Chap.  309,  U.  S.  Comp.  Stat. 
Supp.  1911,  p.   1288,  Fed.  Stat.  Ann.  Supp.  1912,  pp.  Ill  to  127. 

Act  Aug.  24,  1912,  37  Stat.  L.  566,  Chap.  390,  Fed.  Stat.  Ann.  Supp. 
1914,  p.  378.     Known  as  Panama  Canal  Act. 

Act  Mch.  4,  1913,  37  Stat.  L.  1013,  Chap.  160,  Fed.  Stat.  Ann.  Supp.. 
p.   226. 

Act  Mch.  1,  1913,  37  Stat.  L.  701,  Chap.  92,  Fed.  Stat.  Ann.  Supp. 
1914,  p.   204. 

Act  Oct.  22,   1913.     Known  as   District   Court   Act. 

Government    Aided    Railroad    and    Telegraph    Lines    Act. 

Lake  Erie  and  Ohio  Ship  Canal  Act. 

Parcel   Post  Act. 

Witness   Acts. 

Act  March   4,   1915.      Known  as   Cummins   .Amendment 

§  335.     Scope  of  Act  to  Regulate   Commerce. 

336.     Not  Applical)le   to   Intrastate  Transporfaticn. 


Table  of  Contents  xvii 

337.  Terms   "Common    Carrier,"   "Railroad,"  and   "Transportation" 

Defined. 

338.  Duty  of  Carrier  to   Furnish  Transportation  and  to  Establish 

Through  Routes. 

339.  All   Transportation    Charges    Must    Be    Reasonable. 

340.  Classification  of  Telegraph,  Telephone  and  Cable  Messages. 

341.  Classifications,  Regulations  and  Practices  Must  be  Reasonable. 

342.  Free  Service  with  Certain  Exceptions  Prohibited  and  Penalties 

Prescribed. 

343.  Railroad  Companies  Prohibited  from  Transporting  Commodi- 

ties in  Which  They  Are  Interested,  with  Certain  Exceptions. 

344.  Terms  under  Which  Switch  Connections  Shall  Be  Made. 

345.  Definition  and   Prohibition  of  Unjust   Discrimination. 

346.  Undue   and   Unreasonable   Preference   Prohibited. 

347.  Carriers  Shall  Accord  Reasonable  and  Equal  Facilities  for  In- 

terchange of  Traffic. 

348.  Rule  as  to  Long  and  Short   Hauls. 

349.  Relief  from  Long  and  Short   Haul   Clauses. 

350.  Section  Not  to  Apply  for  Six  Months. 

351.  Rates   Reduced  by   Competition  with  Water   Routes   Not   In- 

creased, When. 

352.  Pooling  of  Freights  and  Division  of  Earnings  Prohibited. 

353.  Rail   Carrier  Not  to  Own   Competing  Water  Carriers. 

354.  Whether  or  Not  Competition  Exists  to  Be  Determined  by  the 

Commission. 

355.  Commission    May   Relieve    from    Provision. 

356.  Water  Carriers  to  File  Tariffs. 

357.  Violators    of    Sherman    Anti-Trust    Act    Not    to    Use    Panama 

Canal. 

358.  Carriers  Shall  File,  Print  and  Keep  Public  Schedules  of  Rates. 

359.  Regulations  as  to  Printing  and  Posting  Schedules  of  Rates  for 

Freight    Moving  Through    Foreign    Countries    from   and    to 
Any   Place   in   the   United   States. 

360.  No   Change   of   Schedules   of   Rates   Shall    Be    Made   Without 

Notice. 

361.  Names  of  All  Carriers  Parties  to  Schedules  Must  Be  Specified. 

362.  Carriers  Shall  File  Contracts  Relating  to  Trafiic  Arrangements. 

363.  Commission  May  Prescribe   Form  of  Schedules. 

364.  No   Carrier  Shall   Participate  in  Interstate  Commerce  Unless 

the    Charges    Therefor    are    Published,    and    No    Such    Car- 
rier Shall  Deviate  from  the  Published  Schedules. 

365.  Preference  and  Precedence  May  Be   Given  Military  Traffic  in 

Time   of  War. 

366.  The    Commission   May   Reject   Schedules. 

367.  Penalty  for  Failure  to  Comply  with  Orders  under  Section  Six. 

368.  Penalty  for  Misstating  or  Failure  to   State   Rate. 

369.  Must  Post  Name  of  Agent. 

370.  Corporations  Violating  the  Act  to  Regulate  Commerce  Guilty 

as   Individuals  and   Punishm^nt   Prescribed. 


XVIII  Table  of  Contents 

371.  Rebate.     Punishment  for  Offering,  Granting,  Soliciting,  or  Ac- 

cepting. 

372.  Act  of  Officer  or  Agent,  When  Binding. 

373.  Carrier  Filing  or  Participating  in  Rate  Bound  Thereby. 

374.  Forfeiture  for  Rebating  in  Addition  to  Penalties.     Limitation 

of  Six  Years  Fixed. 

375.  Jurisdiction  over  Water  Carriers. 

376.  Physical  Connection  Between  Rail  Lines  and  Dock  of  Water 

Carriers. 

377.  Through    Routes   and   Joint    Rates    Between    Rail   and   Water, 

Carriers. 

378.  Proportional  Rates  to  and   from   Ports. 

379.  Through  Rates  via  Panama  Canal. 

380.  Conditions    under    Which    Through    Routes    and    Joint    Rates 

with  Water  Carriers  May  Be  Operated  to  Be  Prescribed  by 
the    Commission. 

381.  Contracts  and  Combinations  to  Prevent  Continuous  Carriage 

of   Freight   Prohibited. 

382.  Damages  and  Attorneys'  Fees  Allowed  for  Violations. 

383.  Where  to  Sue  for  Damages,  Compulsory  Attendance  of  Wit- 

nesses and  Production  of  Papers. 

384.  Penalties  for  Violations  of  the  Act. 

385.  Penalties  for  False  Billing,  False  Classification,  False  Weigh- 

ing,  etc.,   bj''   Carriers. 

386.  Penalties  against  Shippers  for  False   Billing,  etc. 

387.  Penalties   and   Damages   for   Inducing   Discriminations. 

388.  Appointment   and   Term   of   Office   of   Commissioners. 

389.  Power   and   Duty   of   Commissioners. 

390.  Power  of  Courts  to  Punish  for  Disobedience,  Witnesses  Not 

Excused   Because  Testimony   May   Incriminate. 

391.  Right    to    Take    Testimony    by    Depositions    and    the    Manner 

Thereof   Prescribed. 

392.  Persons  Who  May  File  Complaints  with,  the  Commission  and 

Practice  with  Reference  Thereto. 

393.  Commission  May  on  Its  Own  Motion  Institute  Investigations, 

394.  Reports    of    Commission    on    Investigations,    How    Alade    and 

Published. 

395.  Power  of  the   Commission   to  Determine   and   Prescribe  Just 

and  Reasonable  Rates,   Regulations  and  Practices. 

396.  When  Orders  Take   Effect  and   How   Long   Continue  Unless 

Modified   or  Set  Aside  by   the   Commission. 

397.  Division  of  Joint  Rate  May  Be  Prescribed  by  Commission. 

398.  Right  to  Suspend  Proposed   Increases  in   Rates. 

399.  Burden  of  Proof  to  Justify  Rates  Increased  after  Jan.  1,  1910. 

400.  Through  Rout?es  and  Joint  Rates  May  Be  Established  by  the 

Commission. 

401.  Limitation  of  the  Power  to  Prescribe  Through   Routes. 

402.  Shippers  May  Designate  Routing. 

403.  Unlawful   to   Give   or   Receive   Information    Relative   to   Ship- 

ments.   . 


Table  of  Coxtents  xix 

404.  Charges    for    Instrumentalities    Furnished    by    Shipper,    Must 

Be    Reasonable. 

405.  Enumeration  of  Powers   of   Commission   Not   Exclusive. 

406.  Award    of    Damages    Shall    Be    Made  by    Commission   after 

Hearing. 

407.  Carrier    Failing   to    Comply   with    Order    for   Reparation,    Suit 

May  Be  Brought  Thereon  in  United  States  and  State  Courts, 
the  Order  Being  Prima  Facie  Evidence  of  the  Right  to  Re- 
cover. 

408.  Limitation  on  Actions   for  Damages. 

409.  All   Parties  Jointly  Awarded   Damages   May   Sue  as   Plaintiffs 

Against  All  Carriers  Parties  to  the  Award. 

410.  Service  of  Orders  of  Commission. 

411.  Commission   May   Suspend   or   Modify   Its   Orders. 

412.  Punishment  for  Knowingly  Disobeying  an  Order  Issued  under 

Section   Fifteen. 

413.  District  Attorney  and  Attorney-General  to  Prosecute    Special 

Attorneys  May  Be  Employed. 

414.  Courts  May  Enforce  Obedience  to  Commission's  Order,  Man- 

datory   or    Otherwise. 

415.  Schedules,   Contracts,   etc.,   Must  Be   Filed  with   the   Commis- 

sion, and.  When  Filed,  Original  or  Certified  Copy  Prima 
Facie  Evidence. 

416.  Rehearings  May  Be  Granted  by  Commission. 

417.  Procedure   before    the    Commission.  # 

418.  Salaries  and  Expenses  of  the  Commission. 

419.  Principal  Office  of  Commission  in  Washington,  but  May  Prose- 

cute  Inquiries   Elsewhere. 

420.  The  Commission  Is  Authorized  to  Investigate,  Ascertain  and 

Report  the  Value  of  Railroad  Property. 

421.  Method  of  Procedure   to  Be   Prescribed  by  the    Commission. 

422.  How   Such    Investigation    Is   Prosecuted. 

423.  Duty   of    Carriers   to   Aid    the    Investigation. 

424.  Valuations  to  Be  Revised  and  Corrected. 

425.  Carrier   to   Make   Reports. 

426.  Notice  of  Completion  of  Valuation. 

427.  Hearings   Before  \^aluation   Fixed. 

428.  Effect  of  \'aluation  as  Evidence. 

429.  Applicable    to   Receivers — Penalty. 

430.  Jurisdiction  of  Courts  to  Aid. 

431.  Requirements  as  to  Transportation  of  Employees  of  the  Com- 

mission with  Supplies  Therefor. 

432.  Annual    Reports    Required    and    What    They    Shall    Contain. 

Penalties  for  Failure  to  Make. 

433.  Commission   May   Prescribe   Form   of   Keeping   Accounts   and 

Inspect  Same. 

434.  Penalties  for  Failure  to  Keep  Accounts  and  for  Falsifying  the 

Record. 

435.  The  Commission  May  Permit  the  Destruction  of  Papers. 


XX  Table  of  Contents 

436.  Penalty  for  an   Examiner  Divulging   Information   Received  as 

Such. 

437.  United    States    Circuit    and    District    Courts    May,    Upon    Ap- 

plication   of   Attorney-General    at    Request    of    Commission, 
Enforce  Provisions  of  Act. 

438.  Commission   May   Employ  Agents  or   Examiners. 

439.  Receiving    Carrier   Liable   for   Loss,   Remedy   Cumulative. 

440.  Carriers  Liable  for  Full  Value  of  Property  Transported— Cum- 

mins Amendment. 

441.  Annual   Reports  by   Commission   to   Congress. 

442.  Circumstances  under  Which  Reduced  or  Free  Fares  and  Rates 

May  Be  Given. 

443.  Existing  Remedies   Not  Abridged   or  Altered.     Pending  Liti- 

gation Not  Affected. 

444.  Interchangeable  Mileage  Tickets,   How   Issued. 

445.  Discrimination    May    Be    Prevented    by    Writ  of  Mandamus, 

Remedy  Cumulative. 

446.  Number,    Terms.    Qualification,    Salary    and    Appointment    of 

Commissioners. 

447.  Existing  Laws  as  to  Obtaining  Testimony  Applicable  to  Act. 

448.  Repealing  Conflicting  Laws  Not  to  Affect  Pending  Suits. 

449.  Time  of  Taking  Effect  of  Act. 

450.  Carriers  Must  Designate  Agents  in  Washington. 

451.  Pending  Cases   Not  Affected. 

452.  Commission  to  Investigate  Questions   Pertaining  to   Issuance 

of  Stocks  and  Bonds. 

453.  Injunctions    against   Operation   of   State   Statutes. 

454.  When   Act   Effective. 

455.  Parties  Defendant  Other  than  Carriers  in  Suit  to  Enforce  Pro- 

visions of  Act. 

456.  Equitable  Proceedings  May  Be  Instituted  by  the  Commission 

to    Restrain    Discrimination    or   Departures    from    Published 
Rates. 

457.  Immunity  and  Compulsory  Attendance  of  Witnesses,  Produc- 

tion  of  Books  and   Papers. 

458.  Expediting  Act  Applicable   to   Suits   Brought  under  Direction 

of  Attorney-General. 

459.  Repealing    Clause    Not    Affecting    Pending    Suits    or    Accrued 

Rights. 

460.  Commerce    Court. 

461.  Commerce  Court  Abolished. 

462.  Venue   of  Suits   on   Orders   of   Interstate   Commerce   Commis- 

sion. 

463.  Procedure  in  the  District  Courts. 

464.  Temporary    Restraining   Orders. 

465.  An  Appeal  to  the  Supreme  Court  from   Interlocutory  Orders. 

466.  Appeals    from    Final   Judgments. 

467.  Pending   Causes   Transferred   to   District   Courts. 

468.  Certain    Cases     Given    Precedence    and    Hearing    Expedited 

Hearing  Before  Three  Judges. 


Tablk  of  Contents  xni 

469.  Direct   Appeal   to   Supreme    Court. 

470.  Government  Aided  Railroad  and  Telegraph  Lines. 

471.  Connecting  Telegraph  Lines. 

472.  Duties   Imposed   on   Interstate   Commerce   Commission. 

473.  Duty   of   the   Attorney-General. 

474.  Penalties  Provided. 

475.  Duty  of  Telegraph  and  Railroad  Companies  to  File  Contracts 

with  and   Make   Reports   to   Interstate   Commerce   Commis- 
sion. 

476.  Right  of  Congress   to  Alter  or  Annul   Act. 

477.  Lake   Erie  and   Ohio   River   Ship   Canal. 

478.  Parcel  Post. 

479.  Compulsory  Attendance  of  Witnesses  and  Production  of  Pa- 

pers  Provided   for. 

480.  Amendment  to  Compulsory  Attendance  Act. 


CHAPTER  X. 

ACTS  RELATING  TO  THE  TRANSPORTATION  OF  ANIMALS. 

Act  to  prevent  cruelty  to  animals  while  in  interstate  transit,  known 
as  the  28-hour  law,  Act  June  29,  1906,  Chapter  3594,  34  Stat.  L.  607, 
U.  S.   Comp.  St.  Supp.   1907,  p.  918,   Fed.  Stat.  Ann.   Sup.   1907,  p.  25. 

Act  March  4,  1907,  Chapter  2907,  34  Stat.  L.  1260  et  seq.,  requiring 
inspection  of  meat. 

'Act  March  3,  1905,  33  Stat.  L.  1264,  Ch.  1496,  U.  S.  Comp.  St.  Supp. 
1909,  p.  1185,  relating  to  transportation  of  animals  from  quarantine 
territory. 

§  481.     Time    Prescribed    for    Feeding    and    Unloading    Animals     in 
Transit. 

482.  Feeding  Shall  Be  at  Expense  of  Owner,  Lien  Given  for  Food. 

483.  Penalty. 

484.  Meat  Inspection  Act. 

485.  Transportation  of  Animals  from  Quarantine  Territory. 


CHAPTER  XI. 

TRUSTS  AND  OTHER  COMBINATIONS  IN  RESTRAINT  OF 

TRADE. 

Sherman  and  Clayton  Anti-Trust  Laws. 

§  486.     Contracts,  Combinations  and  Conspiracies  in  Restraint  of  In- 
terstate   Commerce   Illegal. 

487.  Monopolies   and   Conspiracies  and   Combinations  to   Monopo- 

lize   Interstate   Trade    Illegal. 

488.  Prohibition    Applies    to    Territories    and    Between    States    and 

Territories. 

489.  Courts   Given  Jurisdiction   to   Enjoin  Violations   of  Act. 


XXII  Table  of  Contents 

490.  Practice  with  Reference  to  Parties  and  Service  of  Subpoenas 

Thereon. 

491.  Property  Owned  under  a  Contract  Violating  This  Act  Being 

in  Course  of  Interstate  Transportation  May  Be  Seized  and 
Forfeited. 

492.  Measure   of  Damages  in   Favor  of  Person   Injured. 

493.  Person  Includes  Corporation  and  Association. 

494.  Act  of  August  28,  1894,  So  Far  as   It   Relates  to  Trusts  and 

Combinations  in  Restraint  of  Trade. 

495.  Clayton  Act.     Definitions. 

49G.  Price   Discrimination   Prohibited. 

497.  Lease    or   Sale   of   Patented   Articles. 

498.  Damages  May  Be  Recovered  by  Person   Injured. 

499.  Efifect    of    Final    Judgments    in    Criminal    Prosecutions. 

500.  Labor  Not  a  Commodity. 

501.  Acquisition  by  a   Corporation  of  Stock   in  Another   Corpora- 

tion,  When   Prohibited. 

502.  Interlocking  Directorates,  When   Prohibited. 

503.  Punishment  of-  Corporate  Ofificers. 

504.  Certain  Contracts  of  Common  Carriers  Must  Be  Let  by  Com- 

petitive Bids. 

505.  Authority    to    Enforce    Certain    Provisions    of   Act    Vested    in 

Interstate   Commerce   Commission — Federal   Reserve   Board 
and  Federal  Trade   Commission. 

506.  Procedure  for   Hearings   by   Boards   Vested   with  Jurisdiction 

under  Act. 

507.  Efifect   of  the   Orders   of  Boards. 

508.  Judicial   Proceedings  to   Enforce  the  Orders   of  the   Boards. 

509.  Venue  of  Suits. 

510.  Attendance  of  Witnesses. 

511.  Guilt  of  Corporation  Deemed  Guilt  of  Officers. 

512.  District  Courts   Invested  with  Jurisdiction  to   Prevent   \'iola- 

tions   of   the   Act. 

513.  Private   Persons   May   Obtain   Injunctive   Relief,   When. 

514.  Procedure  in  the  Issuance  of  Temporary  Restraining  Orders. 

515.  Security   Before   Issuing  Restraining  Orders  When   Required. 

516.  What   Injunction   Orders   Shall   Contain 

517.  Injunctions  in  Suits   Between   Employer  and   Employee. 

518.  Disobedience  of  Orders  of  Court. 

519.  Same  Subject.     Procedure  Prescribed. 

520.  Right  to   a  Trial   by  Jury  Provided   for. 

521.  Review  of  Convictions  for  \"iolation  of  Court  Orders. 

522.  Provision  for  Trial  for  Disobedience  to  Orders  of  Court  Not 

Applicable  to  Contempt  Committed  in  the  Presence  of  the 
Court. 

523.  Limitation  in  Proceedings  for  Contempt. 

524.  That  Part  of  the  Act  Invalid,  Not  to  Affect  Validity  of  Other 

Portions. 


APPENDICES. 


A. 
Federal  Trade    Commission  Act. 

B. 

An  Act  to  promote  the  safety  of  employees  and  travelers  upon  rail- 
roads by  compelling  common  carriers  engaged  in  interstate 
commerce  to  equip  their  cars  with  automatic  couplers  and 
continuous  brakes  and  their  locomotives  with  driving-wheel 
brakes,   and   for   other   purposes. 

C. 

An  Act  to  amend  an  act  entitled  "An  act  to  promote  the  safety  of 
employees  and  travelers  upon  railroads  by  compelling  com- 
mon carriers  engaged  in  interstate  commerce  to  equip  their 
cars  with  automatic  couplers  and  continuous  brakes,  and  their 
locomotives  with  driving-wheel  brakes,  and  for  other  pur- 
poses," approved  March  second,  eighteen  hundred  and  ninety- 
three,  and  amended  April  first,  eighteen  hundred  and  ninety- 
six. 

D. 

Supplement    to    Safety    Appliance   Acts. 

E. 

An  act  requiring  common  carriers  engaged  in  interstate  commerce 
to  make  full  reports  of  all  accidents  to  the  Interstate  Com- 
merce   Commission. 

F. 

Medals  of  Honor  Act. 

G. 

An  Act  to  promote  the  safety  of  employees  and  travelers  upon  rail- 
roads  by   limiting   the   hours   of   service   of   employees    thereon. 

H. 

Ash   Pan  Act. 


An  act  to  promote  the  safe  transportation  in  interstate  commerce 
of  explosives  and  other  dangerous  articles,  and  to  provide 
penalties    for    its    violation. 

XXIII 


XXIV  Appendices. 

J. 

Boiler  Inspection  Act. 

K. 

An    Act    concerning    carriers    engaged    in    interstate    commerce    and 
their   employees. 

L. 

Arbitration  Act. 

M. 
Breaking  seals  of  cars  prohibited,  Act  providing  for. 

N. 

Intoxicating   liquors   divested   of   their   interstate   character   in   certain 
'  instances. 


Conference    Rulings. 


TABLE  OF  CASES  CITED. 


[  References  are  to  Sections.  ] 

A. 

Abby  Dodge,  The   (223  U.  S.  166,  56  L.  Ed.  390,  32  Sup.  Ct.  310),  53. 
Aberdeen    Group    Commercial   Asso.   v.   Mobile    &   O.    R.    Co.    (10    I. 

C.    C.    289),    346,    348. 
Acme  Cement  Plaster  Co.  v.  L.  S.  &  M.  S.  R.  Co.   (17  I.  C.   C.  30), 

146. 
Acme    Cement    Plaster    Co.    (18    I.    C.    C.    376),   218. 
Adams  v.  Milwaukee   (228  U.  S.  572,  57  L.  Ed.  971,  33  Sup.  Ct.  610), 

326. 
Adams  v.  Milwaukee   (144  Wis.  371,  129  N.  W.  518,  43  L.  R.  A.   (N. 

S.)    1066),   326. 
Adams  v.  Miss.  Lumber   Co.    (84  Miss.   29,  44  L.   R.   A.    (N.   S.)    257, 

36  So.  68),   58. 
Adams    Ex.   Co.   v.    Commonwealth    (154    Ky.   462,   157    S.   W.   908,   48 

L.    R.   A.    (N.    S.)    342),    58. 
Adams   Ex.   Co.  v.   Croninger   (226   U.   S.  491,   57   L.   Ed.   314,   33   Sup. 

Ct.   148),   34,   439. 
Adams   Ex.   Co.  v.  Kentucky   (206  U.   S.   129,  51   L.   Ed.  987,  27   Sup. 

Ct.    606),    58. 
Adams   Ex.   Co.  v.   Kentucky    (214  U.   S.  218,   53   L.   Ed.   972,  29  Sup. 

Ct.   633),   58. 
Adams  Ex.  Co.  v.  Mellichamp  (138  Ga.  443,  75  S.  E.  596),  34. 
Addyston   Pipe   &   Steel   Co.  v.   United   States    (175  U.   S.   211,   44   L. 

Ed.  136,  20  Sup.  Ct.  96,  1  Fed.  Anti-Trust  Dec.  1009),  486,  489,  491. 
Advances   in   Rates — Eastern   Case    (20   I.   C.   C.   243),   82,   9-6,   98,    126, 

223,    231,    398,    399. 
Advances  in   Rates — Western   Case    (20   L   C.   C.   307),   80,   81,   82,   84, 

87,  88,  100,  126,  130,  223,  392,  398,  399. 
Advances    in    Rates— Western    Case— 1915    (35    I.    C.    C.    497)      (See 

Western    Rate   Advance   Case   1915). 
Advances  in  Rates  on  Grain  (21  I.  C.  C.  22),  88,  398,  399. 
Advances  on  Ground  Iron  Ore  (26  I.  C.  C.  675),  397. 
Alabama  G.  S.  R.  Co.  v.  Fowler  (104  Ga.  148,  30  S.  E.  243),  15. 
Alabama  &  N.  O.  Tr.  Co.  v.  Doyle  (210  Fed.  173).  58. 
Alabama  &  Vicksburg  R.  Co.  v.  Railroad  Com.  of  Miss.    (203  U.   S. 

496,    51    L.    Ed.    289,   27    Sup.    Ct.    163,    86    Miss.    667,    38    So.    356), 

36,    37,    166. 
Alan  Wood  Iron  &  Steel  Co.  v.  P.  R.  Co.   (22  I.  C.  C.  540),  43,  143, 

193. 
Albree  v.  B.  &  M.  R.  Co.   (22  I.  C.  C.  303),  122,  403. 

XXV 


XXVI  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Aldrich   &  .Etna  Co.   (S  Wall.,  75  U.  S.  491,   19  L.   Ed.  473),  55. 
Mender  v.   Chicago,  B.  &  Q.  R.   Co.   (16   I.   C.  C.  103),  383. 
Alexander  v.  United  States  (201  U.  S.  117,  50  L    Ed.  686,  26  Sup.  Ct. 

356,   2    Fed.   Anti-Trust    Dec.    945),    486. 
Algert  Co.  v.  D.  &  R.  G.  Co.  (20  I.  C.  C.  93).  346. 
Alleged  Unreasonable  Rates  on  Meat   (28   I.   C.   C.   332),   408. 
Allen  V.   Louisville,   N.   A.  &   C.   R.   Co.    (1   I.   C.   C.   199,   1   I.   C.   R. 

621),    348. 
Allen  V.  Oregon  R.  &  Nav.   Co.   (98  Fed.   16),  339. 
Allen  V.   St.   L.   I.  M.  &  S.   R.   Co.    (230  U.   S.   553,   57   L.   Ed.   1625),  33 

Sup.   Ct.  1030),  45,  84. 
Allen  V.  Texas  &  Pac.  R.  Co.  (100  Tex.  825,  101  S.  W.  792),  24. 
Alpha  Portland  Cement  Co.  v.  B.  &  O.  R.  Co.  (22  I.  C.  C.  446),  183. 
Alton  Board  of  Trade  v.  C.  &  A.  R.  Co.  (28  I.  C.  C.  589),  348. 
American   and    Other   Express    Companies  v.   United    States    (212    U. 

S.   522.   53   L.    Ed.   635,  29    Sup.    Ct.   315),   66,   335,   442. 
American  Asphalt  Asso.  v.  Uintah  Ry.  Co.  (13  I.  C.  C.  196),  339. 
American  Banana  Co.  v.  United  Fruit  Co.   (160  Fed.  184),  492. 
American   Banana   Co.   v.   United   Fruit    Co.    (166   Fed.   261,   92   C.    C. 

A.    325),    486,    492. 
American  Banana  Co.  v.  United  Fruit  Co.   (213  U.  S.  347,  53  L.  Ed. 

826,    29    Sup.    Ct.    511),    486. 
American    Brake,    Shoe    &    Foundry    Co.    v.    Pere    Marquette    R.    Co. 

(23  I.  C.  C.  519).  99. 
American  Ex.  Co.  r.  Iowa   (196  U.  S.  133,  49  L.   Ed.  417,  25   Sup.  Ct. 

182),  58. 
American    Express    Co.   v.   United    States    (212   U.    S.    522,    53    L.    Ed. 

635,    29    Sup.    Ct.    315),    33,    303. 
American   Ex.  Co.  v.  Miller   (104  Miss.  247,  61   So.  306,  45   L.   R.  A. 

(N.  S.)   120),  58. 
American   Insulated  Wire  &   Cable  Co.  v.   Chicago   &  N.  W.   R.   Co. 

■      (26    I.     C.     C.     415),    245,    351. 
American   National  Live   Stock  Asso.  v.  Tex.   &  Pac.   Ry.   Co.   (12   I. 

C.   C.  32),  338. 
American  Round  Bale  Press  Co.  v.  A.  T.  &  S.  F.  Ry.  Co.  (32  I.  C.  C. 

458),    113,    345. 
American    Sugar    Refining    Co.    v.    Delaware,    L.    &   W.    R.    Co.    (207 

Fed.  733,   125   C.    C.   A.  251),   197.   335,   345,   346,   358,   371,   395,   404. 
American    Sugar   Refining   Co.   v.   Delaware.    L.    &  W.    Ry.    Co.    (200 

Fed.    652),    140,    335,   345,   346,   371,   395,   404. 
American  Tie  and  Timber  Co.  v.  Kansas  City  So.  Ry.  Co.   (175  Fed. 

28),  383. 
Ames  V.  Kirby  (71  N.  J.  L.  446,  59  Atl.  558),  58. 
Ames  V.  Union  Pac.  R.  Co.  (64  Fed.  165).  49,  84. 
Anderson  v.  Pacific  C.  S.  Co.   (225  U.  S.  187,   56  L.  Ed.  1047.  32  Sup. 

Ct.  526),  56. 


Table  of  Cases  Cited.  xxvii 

[  References  are  to  Sections.  ] 

Anaconda   Copper  Mining   Co.  v.   Chicago   &  E.   R.   Co.    (19   I.   C.   C. 

592),   195. 
Anadarko   Cotton  Oil  Co.  v.  A.  T.   &  S.   F.  R.   Co.    (20  I.   C.   C.  43), 

207,    383. 
Anderson  Clayton  &  Co.  v.  C.  R.  I.  &  P.  Ry.  Co.  (18  I.  C.  C.  340), 

140. 
Anson  Gilkey  &  Heard  Co.  v.  So.  Pac.   Co.   (33   I.   C.   C.  332),  88. 
Anthony  Salt  Co.  :-.   Mo.   Pac.  R.  Co.   (5  I.  C.   C.  299,  4   I.  C.  R.  33), 

90. 
Appalachian  Lumber  Co.  v.  Louisville  &  N.   R.   Co.   (25  L   C.   C.   193), 

117,   209. 
Application    of   the    Duluth    South    Shore    &   A.    R.    Co.    (34    L    C.    C. 

229),    335. 
Application  of  the  Southern  Pac.  Co.  (32  L  C.  C.  690,  34  L  C.  C.  648), 

335,  354. 
Application  of  the  Spokane  P.  &  S.   R.  Co.   (33  L  C.  C.  462),  335. 
Application  Grand  Trunk  Ry.   Co.   (34  L  C.   C.  49),  354. 
Application  S.  P.  Co.  Operation  S.  S.  Co.   (32  L  C.  C.  692),  203. 
Arkansas  Fertilizer  Co.  v.  St.  L.  L  M.  &  S.  Ry.  Co.  (25  L  C.  C.  266, 

645),    398,    408. 
Arkansas  Fertilizer  Co.  v.  United  States   (193   Fed.  667),  218. 
Arkansas  Fuel  Co.  v.   C.  M.  &  St.  P.  Ry.  Co.   (16  L   C.   C.  95),  339, 

364,    383,    392,    394. 
Arlington  Heights  Fruit   Exchange  v.  S.  Pac.   Co.   (20  L   C.   C.   106), 

222,    398. 
Arlington  Heights  Fruit  Exchange  v.  S.  Pac.  R.  Co.  (22  L  C.  C.  149), 

107,  222,  311. 
Armour  Packing  Co.  v.  United  States   (209  U.   S.  56,  52  L.   Ed.  681, 

28  Sup.  Ct.  428),  64,  93. 
Ashbell  V.  Kansas   (209  U.   S.  251,   52  L.   Ed.   778,  28   Sup.   Ct.  485,  26 

L.   R.  A.    (N.   S.)   279,   14   Ann.   Cas.   1101),   58. 
Ashgrove  Cement  Co.  v.  A.   T.    &   S.   F.   Ry.   Co.    (23   L   C.   C.   519), 

99. 
Ashland  Fire  Brick  Co.  v.  S.  Ry.  Co.  (22  L  C.  C.  115),  345. 
Associated  Jobbers  of  Los  Angeles  v.  A.  T.  &  S.  F.  R.  Co.  (18  L  C. 

C.  310),  193,  197. 
Association  of  Union  Made   Garment  Mfgr's  of  America  v.   Chicago 

&  N.  W.  R.  Co.  (16  L  C.  C.  405),  88,  89,  90,  91. 
Atchison,  T.  &  S.  F.  Ry.   Co.  v.  Denver  &  N.  O.  R.  Co.    (110  U.   S. 

667,  28  L.  Ed.  291,  4  Sup.   Ct.  185),  148,   327. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Goetz   (51  111.  App.   151),  178. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Holmes  (18  Okla.  92,  90  Pac.  22).  180, 

212. 
Atchison,  T.   &  S.   F.  R.   Co.  v.   Int.  Com.  Com.   (188  Fed.  229),   193, 

197,    315. 
Atchison,  T.   &   S.   F.   Ry.   Co.    Int.   Com.    Com.    (190   Fed.   591),   101, 

311,  312. 


XXVIII  Table  of  Cases  Cited.  ^ 

[  References  are  to   Sections.  ] 

Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Robinson  (223  U.  S.  173,  58  L.  Ed.  90. 

34  Sup.   Ct.   556.   36   Okla.  435,   129   Pac.  20),   34. 

Atchison,  T.  &  S.   F.   R.   Co.  v.   State   (23  Ok.  210,  231,   100   Pac.   11, 

16),  9. 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  United  States  (191  Fed.  856),  63.  107, 

154,    202,    345,    346. 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  United  States  (203  Fed.  56),  87,  222, 

311,    443. 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  United  States   (231  U.  S.  736,  58  L. 

Ed.  — ,   34   Sup.    Ct.   316),   87. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  United  States   (170  Fed.  250,  95  C.  C. 

A.  446),  371. 
Atchison,  T.   &  S.   F.   R.   Co.  v.   United   States    (178   Fed.    12,    101   C. 

C.  A.  140),  481. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  United  States  (204  Fed.  647),  398. 
Atchison,  T.   &  S.  F.  .R.  Co.  v.  United   States   (232  U.   S.   199,  58  L. 

Ed.    568,    34    Sup.    Ct.    291),    143,    222,    313,    315,    398. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Vosberg  (238  U.  S.  56,  59  L.  Ed.  — , 

35  Sup.   Ct.  675),  407. 

Athanasaw  v.  United  States  (227  U.  S.  326,  57  L.   Ed.  528.  33  Sup.  Ct. 

285,  Ann.  Cas.  1913E,  911).  2. 
Atkins    V.    Fiber   Disintegrating   Co.    (18   Wall.,   85   U.    S.    272.    21    L. 

Ed.    841),    307. 
Atkinson  v.  Southern  Ex.  Co.  (94  S.  C.  444.  78  S.  E.  516.  48  L.  R.  A. 

(N.  S.)  349),  58. 
Atlantic  C.  L.  R.  Co.  v.  Florida  (203  U.  S.  256.  51  L.  Ed.  174,  27  Sup. 

Ct.   108),  48. 
Atlantic  C.   L.   R.  Co.  v.   Goldsbo'-o   (155   N.   C.   356.  71   S.   E.  514),   15. 
Atlantic  C.  L.  R.   Co.  v.  Goldsboro   (232  U.   S.   548.  58   L.   Ed.  721,  34 

Sup.  Ct.  364),  15. 
Atlantic  Coast  Line  R.  Co.  v.  Henderson  (131  Ga.  75.  61  S.  E.  1111), 

295. 
Atlantic  Coast  Line  R.  Co.  v.  Int.  Com.  Com.  (194  Fed.  449),  222,  443. 

443. 
Atlantic  Coast  Line  R.  Co.  v.  Macon  Grocery  Co.   (166  Fed.  206,  92 

C.    C.    A.    114),   304,    383,   443. 
Atlantic   Coast   Line   R.   Co.  v.   Mazursky    (216  U.   S.   122,   54  L.   Ed. 

411.   30   Sup.   Ct.  373,   78   S.   C.   36.   58   S.   E.   927,   125  Am.   St.   Rep. 

762),    35. 
Atlantic  Coast  Line  R.   Co.  v.  North   Carolina   Corporation  Commis- 
sion   (206   U.    S.   1,   51    L.    Ed.    933,   27    Sup.    Ct.    585.    11   Ann.    Cas. 

398),  12.  19.  45.  47.  49,  86,  87,  124,  311,  316,  396. 
Atlantic   C.   L.   R.   Co.  v.   Riverside  MHls   Co.    (219  "^    S.    186,   55    L. 

Ed.  167,  31  Sup.  Ct.  164.  31  L.  R.  A.   (N.  S.)  7).   -_.  439. 
Atlantic   C.   L.  R.   Co.  v.   State    (42  Fla.   358,  29   So.   319,  89   Am.   St. 

Rep.   233).   13. 


Table  op  Cases  Cited.  xxix 

[  References  are  to   Sections.  ] 

Atlantic  C.  L.  R.  Co.  v.  State  of  Ga.   (234  U.  S.  280.  58  L.  Ed.  312,  34 

Sup.   Ct.  829),   1o,  22,  31. 
Atlantic   C.   L.   R.   Co.   v.   Wharton    (207   U.   S.   328,   52   L.    Ed.   230,   28 

Sup.    Ct.    121),    19,    21. 
Atlantic  S.   R.   &  G.   Co.  ?'.   State   (135   Ga.  545,  69   S.   E.  725,  32   L.   R. 

A.    (N.    S.)    20),   31. 
Attorney-General    (Mass.)   v.   Eastern   R.   Co.    (137   Mass.   45),   9. 
Attorney-General    z:    Great    Northern    R.    Co.    (29    L.    J.    Ch.    (N.    S.) 

794),  172. 
Attorney-General  7:  Old   Colony  R.   Co.   (160  Mass.  62,  35   N.   E.  252, 

23  L.   R.   A.   112),   38. 
Audley  Hill  &  Co.  r.  S.  R.  Co.  (20  I.  C.  C.  225),  105. 
Augusta  &  Sav.  S.   S.   Co.  r.  O.  S.  S.  Co.   (26  I.   C.   C.  380),  65.  121, 

151,    194,    195,    375,    392. 
Augusta  Southern  R.   Co.  v.  Wrightsville  &  T.   R.   Co.   (74  Fed.  522), 

108,   335,   345,   346,   347. 
Aurora,  The  (7  Cranch,  11  U.  S.  382,  3  L.  Ed.  378),  54. 
Austin  V.  Tennessee  (179  U.  S.  343,  45  L.  Ed.  224,  21  Sup.  Ct.  132),  58. 

B. 

Baer   Bros.    Mercantile    Co.   v.   Mo.    Pac.    Ry.    Co.    (13    I.    C.    C.    329), 

214,    317,    383,    392. 
Baer  Bros.  Mercantile  Co.  v.  M.  P.  R.  Co.   (17  I.  C.  C.  225),  317,  383, 

407. 
Baer   Bros.  v.   D.   &   R.   G.   R.   Co.    (233  U.   S.   479.  58   L.   Ed.   1055.   34 

Sup.    Ct.    641),   207,   215.   314.    317.    383.   407. 
Bailey  v.  W.  U.  Tel.  Co.   (171  S.  W.  839),  340. 
Baker  v.   State    (54   Wis.   368,    12   N.   W.   12),   45. 
Baker  Mfg.  Co.  v.  C.  &  N.  W.  R.  Co.   (21  I.  C.  C.  605),  213. 
Baker-Whitely  Coal   Co.  i:   B.  &  O.   R.  Co.   (188  Fed.  405,   110  C.   C. 

A.  234,   176  Fed.   632),   327,   486. 
Balfour,   Guthrie   &   Co.  v.   O.  W.   R.   &  Nav.   Co.    (21   I.    C.   C.   539), 

140,    404. 
Ball,  The  Daniel   (10  Wall,  77  U.  S.  557.   19  L.   Ed.  999).     Se^  Daniel 

Ball. 
Baltic    Mining    Co.   v.    Mass.    (231    U.    S.    68,    58    L.    Ed.    127,    34    Sup. 

Ct.  15,  207  Mass.  381,  93  N.  E.  831,  Ann.  Cas.  1913C  805).  39. 
Baltimore   &  O.   R.   Co.  v.   Hamburger   (155   Fed.   849),   358. 
Baltimore   &  O.   R.   Co.  v.   Int.   Com.   Com.   (145  U.   S.  263.  36   L.   Ed. 

699.   12   Sup.    Ct.   844),   38. 
Baltimore   &  O.   R.   Co.  v.  Int.   Com.   Com.   (221   U.   S.  612.   35   L.   Ed. 

878,    31    Sup.    Ct.    621),    3,    310,    311,    432. 
Baltimore  &  O.  R.  Co.  r.  United  States   (200  Fed.  779),   140.  197,  312. 

335,  343.  404. 
Baltimore   &  O.    R.   Co.   v.   United   States    (215  U.  *S.   481.   54    L.   Ed. 

292.   30   Sup.    Ct.    164),    i45,    174,    198,   208,   296,   445. 


XXX  Tabli2  of  Cases  Cited. 

[  References  are  to   Sections.  ] 

Baltimore    &   O.    R.    Co.   z:    United    States    (220    U.    S.   94,   55    L.    Ed. 

384,    31    Sup.    Ct.    368),    483. 
Baltimore   &   O.   S.   W.   R.   Co.  v.   United   States    (195   Fed.   962),   191, 

322. 
Baltimore    Butchers    Abattoir    &    Live    Stock    Co.    v.    P.    B.    &   W.    R. 

Co.    (20    I.    C.    C.    124),    101,    104,   249. 
Bancroft,  Whitney   &   Co.  v.   C.   N.   O.   &  T.   P.   R.   Co.    (24   I.   C.   C. 

557),    88. 
Banner   Milling   Co.  v.   N.   Y.    C.   &  H.   R.   R.   Co.    (14   I.   C.   C.   398), 

226,   266,   416. 
Banner  Milling  Co.  v.  N.  Y.  C.  &  H.  R.  R.  Co.  (13  I.  C.  C.  31),  346. 
Bannon   v.    So.    Ex.    Co.    (13    I.    C.    C.   516),   383. 
Barber   Asphalt    Co.   v.    Morris    (132   Fed.   945,   66    C.   C.   A.    55,   67    L. 

R.   A.   761),   60. 
Barden  &  S.  v.  Lehigh  V.  R.  Co.   (12  L  C.  C.   193),  434. 
Barnes  Co.  v.  Berry   (156  Fed.  72),  487. 
Barnett   v.   Spokane,   P.   &   S.   Ry.   Co.    (210   Fed.   94),   332. 
Barrett  v.  City  of  New  York   (183  Fed.  793,  189   Fed.  268),  25,  66. 
Barrett  v.   City   of   New   York   (232  U.   S.   14,   58   L.   Ed.   483,   34   Sup. 

Ct.    203),    4,    25,    337. 
Bascom  Co.  v.  A.  T.  &  S.  F.  Ry.  Co.  (17  L  C.  C.  354),  118,  346. 
Bates  V.  C.  M.   &  St.  P.  R.   Co.    (GO  Wis.  296,   19  N.  W.  72,   50  Am. 

St.  Rep.  369),  42. 
Bates  V.   Penn.   R.   Co.    (4   L    C.   C.   281,   3    L   C.    R.   296),   416. 
Bauer  &  Cie  v.  O'Donnell   (229   U.   S.   1,   57   L.   Ed.   1041,   33   Sup.   Ct. 

616),  486. 
Baxendale  v.   Eastern   Counties   R.   Co.    (4   C.   B.   N.   S.   63),   133. 
Baxendale  v.   L.   &  S.  W.   Ry.   (4  H.   &  C.   130,   35   L.  J.   Ex.  108,  L. 

R.  1  Ex.  137,  12  Jur.   (N.  S.)   274,  14  L.  T.  26,  14  W.   R.  458),   157. 
Baxter  &  Co.  v.   Georgia  S.  &  F.  Ry.   Co.   (21   L  C.   C.  647),  119. 
Beardsley  v.    N.    Y.    L.    E.   &    W.    R.    Co.    (162    N.    Y.   230.   56    N.    E. 

488),   38. 
Becker  z'.  P.  M.   R.   Co.   (28  L  C.  C.  645),  208. 
Beekman   Lumber   Co.  v    St.   Louis,   L   M.   &  S.   R.   Co.    (15   L   C.   C. 

274),    218. 
Behlmer  v.   Louisville   &  N.   R.   Co.    (71   Fed.   835),   335,   347. 
Behlmer   v.    Louisville    &   N.    R.    Co.    (83    Fed.    898,   28    C.    C.   A.   229, 

42    U.    S.   App.    581),    335,   348. 
Behlmer  v.   Memphis   &   C.   R.   Co.    (6   L   C.   C.   257,   4   L   C.   R.   520), 

335,    347. 
Belfast,  The  (7  Wall,  74  U.  S.  624,  19  L.  Ed.  266).  55.  56. 
Bell  Co.  V.  Baltimore,  etc.,  R.  Co.  (9  L  C.  C.  632),  345. 
Bement  v.    National   Harrow    Co.    (186   U.   S.   70,   46    L.    Ed.    1058,   22 

Sup.   Ct.  747,  2   Fed.   Anti-Trust  Dec.   169).   486. 
Bennett  v.   United   States    (227   U.   S.   333,   57   L.    Ed.  531.   33   Sup.   Ct. 

288),    2.  ^ 

Benson,   Ex  parte   (18  S.  C.  38),   133. 


Table  of  Cases  Cited.  xxxi 

[  References  are  to   Sections.  ] 

Bernheim  z:  O.  R.  &  N.  Co.  (25  I.  C.  C.  156),  88. 

Berwind-White    Coal    Mining   Co.   v.    C.    &    E.    I.    R.    Co.    (235   U.    S. 

371,   59   L.    Ed.  — ,   35   Sup.    Ct.    131),   355. 
Best  V.  Gt.  N.  R.   Co.   (33  I.   C.   C.   1),  383,  404. 

Best  V.   Seaboard  A.   L.   Ry.   Co.    (72   S.   C.  479,   52   S.    E.  223),   35. 
Bigbee    &   Warrior   Rivers    Packet    Co.   v.    Mobile    &   O.    R.    Co.    (60 

Fed.    545),    345,    346. 
Bigelow  V.  Calumet  &  Hecla  Mining  Co.  (155  Fed.  869),  489. 
Bigelow  i:  Calumet  &  Hecla  Mining  Co.   (167   Fed.  704),  486,  489. 
Bigelow  V.   Calumet   &  Hecla  Mining  Co.    (167   Fed.  721,  94   C.   C.  A. 

13),   486,   489. 
Bills   of  Lading   (14    I.   C.   C.   346),   252. 
Bills  of  Lading  (29  L  C.  C.  417),  26,  252. 

Binney   v.    Cumberland-Ely   Coffee    Co.    (183   Fed.   650),   486. 
Birmingham    Packing    Co.   v.   Texas    &   P.    Ry.    Co.    (12    L    C.    C.   29, 

500),  338. 
Birmingham   Water   Works   v.    Birmingham    (211    Fed.   497),    453. 
Bishop  f.  American   Preservers'   Co.    (51   Fed.  272,   1   Fed.   Anti-Trust 

Dec.  49),  492. 
Bishop  z\  American   Preservers'   Co.    (105   Fed.   845),   492. 
Bitterman  v.   L.   &  N.   R.   Co.    (207  U.   S.  205,   52   L.   Ed.   171,  28   Sup. 

Ct.    91),    37. 
Bitzer  v.  W.  V.   R.   Co.    (24   L   C.   C.   255),   185. 

Black  Horse  Tobacco  Co.  v.  I.  C.  R.  Co.   (17  L  C.  C.  588),  195,  214. 
Black  Mt.  Coal  Land  Co.  v.  So.  Ry.  Co.   (15  L  C.  C.  286),  345,  346. 
Blackwell  Milling  &  Elevator  Co.  v.  Mo.  K.  &  T.  Ry.   Co.   (12  L  C. 

C.    23),    345,    346. 
Blakely  S.  R.  Co.  v.  A.  C.  L.  R.  Co.   (26  L  C.   C.  344),  344. 
Blindell    &   Hagan    (54   Fed.   40,    1   Fed.   Anti-Trust   Dec.    106),   489. 
Blinn  Lumber  Co.  v.  So.  Pac.  Co.   (18  I.  C.  C.  430),  218,  406,  408. 
Block  V.  Standard  Distilling  &  D.  Co.  (95  Fed.  978,  1  Fed.  Anti-Trust 

Dec.    993),    492. 
Blount  Mfg.  Co.  v.  Yale  &  Tovime  Mfg.  Co.   (166  Fed.  555),  486. 
Bluef^eld   Shippers'  Ass'n  v.   N.  &  W.   R.   Co.    (22   L   C.   C.   519),  244. 
Blume  V.  Wells,  Fargo   &  Co.   (15   L   C.   C.   53),  209,   383,  406. 
Board  of  Bristol,  Tenn.  r.  Virginia  &  S.  W.  Ry.  Co.  (15  L  C.  C.  453), 

93,   486. 
Board   of  Trade   of   Carrollton  v.   Central   of   Ga.    Ry.    Co.    (28    L    C. 

C.    154),    108,    183.    346. 
Board   of  Trade   of   Chattanooga  v.   East   Tenn..   Va.   &   Ga.   Ry.   Co. 

(5    L    C.    C.    546,    2    L    C.    R.    798,    3    L    C.    R.    106,    4    L    C.    R.    213), 

339,    348. 
Board  of  Trade  of  Chicago  v.  Chicago  &  A.  R.  Co.   (4  L  C.   C.  158, 

3    L    C.    R.    233),    147,    346. 
Board   of   Trade    of   Chicago   v.   A.   T.    &    S.    F.    R.    Co.    (29    L    C.    C. 

438),    253. 


XXXII  .Table  of  Cases  Cited. 

[  References  are  to   Sections.  ] 

Board  of  Trade  of  Chicago  v.  C.  &  A.  R.  Co.   (27  I.  C.  C.  530),  146, 

339,   345.    346. 
Board  of  Trade  of  Chicago  v.  Christie  Grain  &  Stock  Co.   (121  Fed. 

608,   2   Fed.   Anti-Trust   Dec.   233),   486. 
Board  of  Trade  of  Chicago  v.   Christie  Grain   Co.   (198  U.  S.  236,  49 

L.  Ed.   1031,  25  Sup.  Ct.  637,  2  Fed.  Anti-Trust  Dec.  717),  486. 
Board   of  Trade    of   Dawson   v.   Central    of   Ga.    Ry.    Co.    (8    I.    C.    C. 

142),    108. 
Board   of   Trade    of   Hampton   v.   Nashville,    C.    &   St.    L.    R.    Co.     (8 

I.   C.   C.  503),   108,   339.  346,  348. 
Board  of  Trade  of  Kansas  City  v.  St.  Louis  &  S.  F.  R.  Co.  (32  I.  C.  C. 

297),  118. 
Board   of  Trade   of   Lynchburg  v.   Old   Dominion   S.   S.   Co.    (6   I.   C. 

C.   632),   348,   383. 
Board  of  Trade  of  New  York  v.  Penn.   R.   Co.   (4   L   C.   C.  447,  2   L 

C.    R.    660,    734,   755,    800,    3    L    C.    R.    417).    339.    345,    358. 
Board  of  Trade  of  Troy  v.  Alabama  M.  R.  Co.  (6  L  C.  C.  1,  4  L  C. 

R.   348).   339,   348. 
Boards   of  Trade   Union   v.   Chicago,   etc.,    R.    Co.    (1   L    C.   C.   215,   1 

L   C.   R.  608),   346. 
Bobbs-Merrill    Co.   v.   Straus    (139    Fed.    155,   2    Fed.   Anti-Trust    Dec. 

755),  486. 
Bobbs-Merrill  Co.  v.  Straus   (147   Fed.   15,  77  C.   C.  A.  607,  15  L.   R. 

A.  766),  486. 
Bobbs-Merrill   Co.  v.  Straus    (210  U.  S.  339,  52  L.   Ed.   1086,  28  Sup. 

Ct.    722),   486. 
Bonney  v.  Cumberland-Ely  Cofifee  Co.   (183  Fed.  650),  486. 
Booth   &   Co.  V.   Davis    (127   Fed.   875,  2   Fed.   Anti-Trust   Dec.   318), 

486. 
Boston  &  A.  R.  Co.  v.  Boston  &  L.  R.   Co.   (1   L  C.  C.  158,  1   L   C. 

R.   500.  571),  153,   199,  348,  392. 
Boston  &  M.  R.  Co.  v.  Hooker  (233  U.  S.  97.  58  L.  Ed.  868,  34  Sup. 

Ct.    526),   34,   358,   439. 
Boston   Chamber  of  Commerce  v.  Lake  Shore  &  M.  S.   R.   Co.   (1   L 

C.    C.    436,    1    L    C.    R.    754),   3. 
Boston  Fruit  &  Produce  Exchange  v.  New  York  &  N.   E.  R.  Co.   (5 

L    C.    C.    1,    3    L    C.    R.    604),    335,    339. 
Boston  Fruit  &  Produce  Exchange  v.  New  York  &  N.  E.  R.  Co.   (4 

L    C.    C.   664,   3   L.    C.    R.   493).   335,   339. 
Boston    (Ga.)   v.  A.   C.   L.   R.   Co.    (24   L   C.   C.   50),   lOS.   346.   348. 
Bowling    Green    Bus.    Men's    Asso.   v.    L.    &    N.    R.    Co.    (24    L    C.    C. 

228),  244,   348. 
Bowling  Green  Bus.  Men's  Asso.  v.  L.  &  N.  R.  Co.  (31  L  C.  C.  1).  194. 
Bowling    Green    Bus.    Men's   Asso.   v.   L.    &   N.    R.    Co.    (31    L    C.    C. 

301),   375. 
Bowman  v.   Chicago   &   N.  W.   R.   Co.   (125   LT.   S.  465,   31   L.   Ed.   700, 

8    Sup.    Ct.    689),    58. 


Table  of  Cases  Cited.  xxxiii 

[  References  are  to  Sections.  ] 

Boyle  V.  St.  L.  &  S.  F.  R.  Co.  (222  Fed.  539),  4,  49. 

Bracey  v.  Darst  (218  Fed.  482),  58. 

Brady  v.  Penn.  R.  Co.   (4  I.   C.  R.  283),  416. 

Brady  v.  Penn.  R.  Co.  (2  I.  C.  C.  131,  2  I.  C.  R.  78).  339. 

Brass   v.   North    Dakota   ex   rel.    Stoesser    (153   U.    S.   391,   38   L.    Ed. 

757,  4  I.   C.   R.  670,  14  Sup.   Ct.  857),  45. 
Breechbill  v.  Randall  (102  Ind.  528,  52  Am.  Rep.  695,  1  N.  E.  362),  45. 
Brenner  Lumber  Co.  v.  M.  L.  &  T.   R.  Co.   (34  I.  C.  C.  630),  383. 
Brewer  v.  Central  of  Ga.  Ry.  Co.  (84  Fed.  258),  153,  199,  346,  348. 
Brig  Aurora,  The   (7   Cranch,   11  U.  S.  382,  3  L.   Ed.  378),  54. 
Brodnax  v.  Missouri  (219  U.  S.  285,  55  L.  Ed.  219,  31  Sup.  Ct.  238),  57. 
Brook-Rauch   Mill   &   Elevator   Co.  v.  M.   &  P.   Ry.   Co.    (17   I.   C.   C. 

158),    139,    346. 
Brook-Rauch   Mill  &  Elevator   Co.  v.   St.  L.   &  I.  M.  Ry.   Co.    (21   I. 

C.  C.  651),  33.7,  400. 
Brown  v.   Clayton   (12  Ga.  564),   55. 

Brown  v.  Walker  (161  U.  S.  591,  40  L.  Ed.  918,  16  Sup.  Ct.  644),  299. 
Bryant  Lumber  Co.  v.  Fourche  River  Lumber  Co.   (97  Ark.  623,  135 

S.   W.   796),   371. 
Brymer    v.    Butler    Water    Co.    (179    Pa.    St.    331,    36    Atl.    249),    46. 

(Book   2). 
Buckeye  Buggy  Co.  v.   Cleveland,  etc.,   R.   Co.    (9   L   C.'C.  620),   339, 

345,  385. 
Buckeye  Powder  Co.  v.  Du  Pont  de  Nemours  (196  Fed.  514,  223  Fed. 

887),    492,   499. 
Buchanan  v.  N.  P.  R.  Co.  (5  L  C.  C.  7,  3  L  C.  R.  655),  88. 
Buck  Stove  Co.  v.  Vickers   (226  U.  S.  205,  57   L.  Ed.  189,  33  Sup.   Ct. 

41),    8. 
Budd  V.  New  York   (143  U.  S.  517,  36  L.   Ed.  247,  4  L   C.   R.  45,   12 

Sup.    Ct.    468),    45. 
Buffalo  R.  &  P.  R.  Co.  Operation  Car  Ferry  (34  L  C.  C.  52),  354. 
Buffalo  R.  &  P.  Ry.  Co.  v.  P.  R.  Co.  (29  L  C.  C.  114),  347. 
Buffalo  Union  Furnace  Co.  v.  L.  S.  &  M.  S.  R.  Co.  (21  I.  C.  C.  620), 

149,   346. 
Bulah  Coal  Co.  v.  P.  R.  Co.  (20  L  C.  C.  52),  175,  208. 
Bulte  Milling  Co.  v.  C.  &  A.  R.  Co.  (15  L  C.  C.  351),  91,  99. 
Burdick  v.   People    (149    111.   600.   36   N.    E.   948,   24   L.   R.   A.   152,   41 

Am.   St.   Rep.  329),   37. 
Buren  v.  S.  P.  Co.   (26  L   C.   C.  332),  358. 
Burgess   v.   Transcontinental    Freight    Bureau    (13    L    C.    C.    668),    96, 

212,  346,  383. 
Burlington,  C.  R.   &  N.   Ry.   Co.  v.   Northwestern   Fuel   Co.    (31   Fed. 

652),   156,   345. 
Burnham-Hanna-Munger  Dry  Goods  Co.  ?'.  Chicago  R.  &  P.  R.  Co. 

(14  L   C.   C.  299),   109,   117,   207,  222,   339. 
Burnett  v.  Spokane,  P.  &  S.  Co.  (210  Fed.  94),  332. 
Burrows  r.   Interborough   Met.   Co.    (156   Fed.   389),   487. 

— b 


XXXIV  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Burton  Stock  Car  Co.  v.  Chicago,  B.  &  Q.  R.  Co.   (1  I.  C.  C.  132,  1 

I.    C.    R.   329),   337,   345,   347. 
Business  Men's  Asso.  v.  Chicago  &  N.  W.  Ry.   Co.    (2  I.  C.  C.  73,  2 

I.    C.    R.    48),    99,    110. 
Business   Men's   Asso.   v.    Chicago,   St.   P.,   M.   &  O.   R.   Co.    (2   I.   C. 

C.  52,  2  I.  C.  R.  41),  99,  105,  138,  339,  345. 
Business  Men's  League  of  St.  Louis  v.  Atchison,  T.  &  S.  F.  Ry.  Co. 

(9    L    C.    C.    318),    95,    114,    156,    339,    346,    348. 
Butchers'  etc.,   Stock  Yards   Co.  v.   Louisville   &  N.   R.   Co.    (67   Fed. 

35,    14    C.    C.    A.    290),    197,    346. 
Buttfield   V.    Stranahan      (192   U.    S.   470,   48    L.    Ed.    525,   24    Sup.   Ct. 

349),   54. 


Caldwell  Co.  v.  C.  L  &  L.  Ry.  Co.  (20  L  C.  C.  412),  90. 

Calhoun  v.  Seattle   (215   Fed.  226),   453. 

California   Com.  Asso.  v.  Wells,   Fargo  &  Co.    (14   L   C  C  422),  156, 

157,  345,  383. 
California  Com.  Asso.  v.  Wells-Fargo  Ex.  Co.   (16  L  C.  C.  458),  383. 
California  Com.  Asso.  v.  Wells-Fargo  Ex.  Co.   (21  L  C.  C.  300),  345. 
California  Pole  &  Piling  Co.  v.  S.  P.  Co.   (27   L   C.  C.  670),  146. 
Calloway  v.  Louisville  &  N.  R.  Co.   (7   L   C.   C.  431).  346,  348. 
Camden    Iron   Works   v.   United    States    (158    Fed.    561,    85    C.    C.    A. 

585),   371. 
Camors-McConnell    Co.    v.    McConnell    (140    Fed.    412,    2    Fed.    Anti- 
Trust   Dec.   817),   486. 
Campbell  v.  Northern  R.  W.  Co.   (26  Gr.  522),  352. 
Campbell's  Creek  Coal  Co.  v.  A.  A.  R.  R.  Co.   (29  L  C.  C.  682),  338, 

343. 
Canada   Atlantic   Transp.    Co.   v.    Chicago    (210    Fed.   7,    126    C.    C.    A. 

587),   55. 
Canada   S.    Ry.    Co.   v.    International    Bridge    Co.    (8   App.    Cas.    731), 

126. 
Cannon   v.   Mobile    &   Ohio   R.    Co.    (11    I.   C.    C.   537),   110,   339,   345, 

346. 
Cannon  Falls  Elevator  Co.  v.  Chicago,  etc.,  R.  Co.   (10  I.  C.  C.  650), 

164,   345,  346. 
Capeheart  v.  Louisville  &  N.  R.  Co.   (4  I.  C.  C.  265.  3  I.  C.  R.  278), 

335,   338,   347. 
Capital  City  Gas.  Co.  v.  Central  V.  R.  Co.   (11  I.  C.  C.  104),  139.  345. 
Cardiff  Coal  Co.  v.  Chicago,  M.   &  St.  P.   Ry.   Co.   (13  I.   C.   C.  460), 

145,  195,  338,  347. 
Cardwell  v.  Am.  Bridge   Co.   (113  U.  S.  205,  28  L.  Ed.  959,  5  Sup.  Ct. 

423),   54. 
Carey  Mfg.  Co.  v.  G.  T.  W.  Ry.  Co.  (36  I.  C.  C.  203),  65. 
Car  Ferry  Allowance   (32   I.   C.   C.  578).   171,  193. 


Table  of  Cases  Cited.  xxxv 

[  References  are  to   Sections.  ] 

Carl  V.  K.  C.  S.  R.   Co.   (91  Ark.  97,   121   S.  W.  932,   134  Am.   St.  5G), 

439. 
Carlisle  v.  Mo.   Pac.   R.   Co.   (168  Mo.  C56,   68   S.  W.  898),  405. 
Carnegie  Board  of  Trade  v.  P.  R.  Co.   (28  I.  C.  C.  122),  442. 
Carolina  Portland  Cement  Co.  v.  C.  &  O.  R.  Co.  (21  I.  C.  C.  533),  213. 
Carr  v.  Northern   Pac.   R.   Co.   (9   I.   C.  C.   1),   116,  345,  358. 
Carter  v.  New  Orleans  &  N.  E.  R.  Co.  (143  Fed.  99,  74  C.  C.  A.  293), 

218,    383. 
Carter-White  Lead   Co.  v.  N.  &  W.  R.   Co.   (21   I.   C.   C.  41),  89. 
Carstens  Packing  Co.  v.  O.  S.   L.   R.  Co.   (17  I.  C.   C.  125,  324),   159, 

206,    348. 
Carter-Crume   Co.  v.   Peurrung   (86   Fed.   439,  39   C.   C.  A.   174,   1   Fed. 

Anti-Trust  Dec.  844),  486. 
Car  Spotting  Charges   (34  I.   C.   C.  609),   140,   143,   193. 
Cary  v.   Eureka  Springs  Ry.  Co.   (7  I.   C.   C.  286),  335,  345,  395. 
Cassatt  V.   Mitchell   Coal   &  Coke  Co.   (150   Fed.  32,   10   L.   R.  A.,   N. 

S.,    99,    81    C.    C.   A.    80),    335. 
Cator  V.  Southern  Pac.   Co.   (6  I.   C.   C.   113,  4   I.   C.   R.  397),  345. 
Cattle    Raisers'    Asso.    v.    Chicago,    B.    &    Q.    R.    Co.    (10    I.    C.    C. 

83),   218,   383,   392,   406,  408,  416. 
Cattle  Raisers'  Asso.  v.   Chicago,   B.   &  Q.   R.   Co.   (11   I.   C.   C.  277), 

9,   80,   129,   197,  383. 
Cattle  Raisers'  Asso.  v.  Chicago,  B.  &  Q.  R.  Co.   (12  I.   C.  C.  6),  80, 

263,  392,  416. 
Cattle  Raisers'  Asso.  v.   Chicago,   B.   &  Q.   R.   Co.    (12   I.   C.   C.  507), 

80,  392,  416. 
Cattle   Raisers'   Asso.   v.   Ft.   Worth   &   D.    C.    R.    Co.    (7    C.   C.   555), 

335,  337,   345,   346,   416. 
Cattle    Raisers'  Asso.   of  Texas  v.   Ft.   Worth   &   D.   C.   R.   Co.    (7    I. 

C.   C.  513),  335,  345,  346. 
Cattle  Raisers'  Asso.  of  Texas  v.  Galveston,  H.   &   S.  A.  R.   Co.   (12 

I.  C.  C.  20),  338. 
Cattle  Raisers'  Asso.  v.  Missouri,  Kansas  &  Tex.  R.  Co.  (11  I.  C.  C. 

296,    13    I.    C.    C.    418),    339,    383,   486. 
Cattle  Raisers'  Asso.  v.  Missouri,  Kan.  &  Tex.  Ry.   Co.   (12   I.   C.   C. 

1),   392,  395,   416. 
Cavanaugh  Bros.  v.  C.  R.  I.  &  P.  R.  Co.  (75  N.  H.  243,  72  Atl.  694),  42. 
Cedar  Hill  Coal  &  Coke  Co.  v.  Colorado  &  Southern  R.  Co.  (14  I.  C. 

C.  606,   16   I.   C.   C.  387,   179   C.   C.  A.  479),  49,   195,  383. 
Cedar  Hill   Coal  &  Coke   Co.  v.   Colorado  &  Southern  R.   Co.   (17   I. 

C.  C.  479),  195. 
Cedar  Rapids    Gas.    Co.   v.   Cedar   Rapids    (223   U.    S.   655,   56   L.    Ed. 

594,    32   Sup.    Ct.   389),   47. 
Cement   Rates   from   Mason   City   (30   I.   C.   C.   426),   121,   401. 
Central  Coal  &  Coke  Co.  v.  Hartman   (ill  Fed.  96,  49  C.  C.  A.  244, 

2  Fed.  Anti-Trust  Dec.  94),  492. 
Central   Com.   Qr^.  v.  L.   &  N.   R.   Co.    (27   I.   C.   C.   114),   395. 


XXXVI  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Central  of  Ga.  R.  Co.  v.  Augusta  Brokerage  Co.   (122  Ga.  646,  50  S. 

E.   473,   69   L.   R.   A.   119).   37,   38. 
Central   of   Ga.   Ry.   Co.   v.    Evans    (133   Ga.   639,   66   S.    E.   788),   42. 
Central  of  Ga.  Ry.   Co.  v.  McLendon,  et  al.   (157  Fed.  961),  50,  60. 
Central    of    Ga.    Ry.    Co.    v.    City    Mills    Co.    (12S    Ga.    841,    58    S.    E. 

197),  295. 
Central  of  Ga.  Ry.  Co.  v.  Murphey   (116   Ga.  863.  43  S.  E.  265,  60  L. 

R.  A.  817),  32. 
Central   of   Ga.    Ry.    Co.   v.    Alurphey    (196   U.   S.    194,   49   L.    Ed.   444, 

25    Sup.    Ct.   213),    32. 
Central   of  Ga.   Ry.   Co.  v.   State    (104   Ga.   831,   31   S.   E.   531),  9. 
Central  of  Ga.  R.  Co.  v.  R.  R.  Com.  of  Ala.  (209  Fed.  75),  43,  45. 
Central  of  Ga.  Ry.  Co.  v.  R.  R.  Com.  of  Ga.  (215  Fed.  421),  45. 
Central    of  N.  J.  R.  Co.  z\  Hite  (166  Fed.  976),  297. 
Central  P.  R.  Co.  v.  Gallatin   (99  U.  S.  9  Otto  727,  25  L.  Ed.  504),  3. 
Central  Stock  Yards   Co.  v.   Louisville    &   N.   R.   Co.    (112   Fed.   823). 

383,    406. 
Central   Stock  Yards    Co.   v.   Louisville    &   N.    R.    Co.    (118   Fed.   113, 

55    C.    C.   A.    63,    63    L.    R.   A.   213),    12,    14,    197,    347,    406. 
Central   Stock  Yards   Co.  v.   Louisville   &   N.   R.   Co.    (192  U.   S.   568, 

4S    L.    Ed.    565.    24    Sup.    Ct.    339),    14.    17.    197,    304,    347. 
Central  Trust  Co.  v.  P.,  etc.,  R.  Co.    (101  X.  Y.  Supp.  837,  114  App. 

Div.   907),   343,   492. 
Central  Yellow  Pine  Asso.  v.  Illinois  Cent.  R.  Co.   (10  L  C.  C.  505). 

'85,   90,   92,   100,    1*02,   207,   339,  345,   346,   395,  486. 
Central  Yellow   Pine  Asso.   v.   Vicksburg,   S.   &   P.   R.   Co.    (10   L    C. 

C.    193),    163,    170,   345,   358. 
Chamber  of  Commerce  of  Ashburn  v.  G.  S.  &  F.  R.  Co.  (23  L  C.  C. 

140),    145. 
Chamber  of   Commerce   of   Chattanooga  v.   Southern   Ry.    Co.    (10   L 

C.    C.    Ill),   348. 
Chamber  of  Commerce  of  Newport  News  v.   S.   R.  Co.    (23   L   C.   C. 

345),  95.  222. 
Chamber  of  Commerce  of  New  York  v.   N.  Y    C.   &  H.   R.   Co.    (24 

L    C.    C.    55),    401. 
Chamber    of    Commerce    of   Milwaukee   v.    Chicago,    M.    &   St.    P.    R. 

Co.    (7    L    C.    C.   481),    346. 
Chamber    of   Commerce   of   Milwaukee   v.    Flint    &   P.    M.    R.    Co.    (2 

L    C.    C.   553,   1    L    C.    R.   774,   792,   2    L    C.    R.    393),   345. 
Champion  v.   Ames    (IBS   U.   S.   321,   47   L.   Ed.   492,  23   Sup.   Ct.   321), 

2,   58. 
Chappell    V.    United    States    (160   U.    S.    499.    40    L.    Ed.    510,    16    Sup. 

Ct.  397),  7. 
Charleston  &  W.  S.  C.  R.  Co.  v.  Varnville  Furniture  Co.   (237  U.  S. 

597,  59  L.  Ed.  — .  35  Sup.  Ct.  715,  98  S.  C.  63,  79  S.  E.  700).  34.  35. 
Cherokee   Lumber  Co.  v.  A.  C.  L.  R.   Co.   (27   L   C.   C.  438),  98. 


Table  of  Cases  Cited.  xxxvii 

[  References  are  to  Sections.  ] 

Cherokee  Nation  z:  Sou.  Kansas  Ry.  Co.  (135  U.  S.  641,  34  L.  Ed.  295, 

10   Sup.    Ct.    965),    7. 
Chesapeake   &  Ohio  Fuel  Co.  v.  United  States    (115   Fed.   610,  53   C. 

C.   A.   256,   2   Fed.  Anti-Trust   Dec.    151),   486. 
Chesapeake   &  O.  R.   Co.  v.   Conley    (230  U.   S    513,   57   L.   Ed.   1597, 

33  Sup.   Ct.  985),  45,  84. 
Chesapeake  &  Ohio  R.  Co.  v.  Int.  Com.  Com.   (200  U.  S.  361,  50  L. 

Ed.    515,    26    Sup.    Ct.    272),    345. 
Chesapeake   &  Ohio   R.   Co.   v.   Kentucky    (179   U.   S.   388,   45   L.    Ed. 

244,   21   Sup.    Ct.    101),   29. 
Chesterton   &  W.   R.   Co.  r.   Comrs.    (1   Ohio  St.  77),  54. 
Chicago  &  Alton  R.  Co.  v.  Int.  Com.  Com.   (173  Fed.  930),  309,  346, 

395. 
Chicago  &  Alton  R.  Co.  v.  Kirby  (225  U.  S.  155,  56  L.   Ed.  1033,  32 

Sup.   Ct.  648),   346,  358,   371. 
Chicago  &  Alton  R.  Co.  v.  New  York,  L.   E.  &  W.  R.  Co.   (24  Fed. 

516),  304. 
Chicago  &  Alton  R.  Co.  v.  Penn.  Co.   (1  I.  C.  C.  86,  1  I.  C.  R.  357), 

338,  347. 
.Chicago  &  Alton  R.  Co.  v.  United  States   (156  Fed.  558,  84  C.  C.  A. 

324),    358. 
Chicago   &  G.  T.   R.   Co.  v.  Wellman   (143  U.  S.  339,  36   L.   Ed.   176, 

12  Sup.   Ct.   400).  45. 
Chicago  &  Mil.  Elec.  Ry.  Co.  v.  III.  Cent.  R.  Co.  (13  I.  C.  C.  20),  335, 

338,  400. 
Chicago  &  N.  W.  R.  Co.  v.  Forest  Co.  (95  Wis.  80,  70  N.  W.  77),  42. 
Chicago  &  North  W.  R.  Co.  v.  Junod   (52  Fed.  912.  3  C.  C.  A.  347), 

383. 
Chicago  &  North  W.  R.  Co.  v.  Osborne  (52  Fed.  912,  3  C.  C.  A.  347), 

348,   383. 
Chicago   &   North  W.    R.   Co.  v.   Osborne    (146  U.   S.   364,   36   L.   Ed. 

1002;  13  Sup.  Ct.  281),  383,  389,  397. 
Chicago   &  N.  W.   R.   Co.  v.   Smith    (210   Fed.   632),   43,   45. 
Chicago  Board  of  Trade  v.   C.  &  A.  R.  Co.   (4  I.   C.  C.  158),  91. 
Chicago,  B.  &  Q.  R.  Co.  v.  Anderson  (72  Neb.  586,  101  N.  W.  1019),  52. 
Chicago,   B.   &   Q.   R.    Co.  v.   Cram    (228   U.   S.   70,   57   L.    Ed.   784,   33 

Sup.    Ct.    437),    20. 
Chicago,   B.   &  Q.   R.   Co.  v.   Drainage   Comrs.    (200  U.   S.  561,   50  L. 

Ed.  596,  26  Sup.  Ct.  341),  54. 
Chicago,  B.  &  Q.  R.  Co.  v.  Feintuch  (191  Fed    482,  112  C.  C.  A.  126), 

207,   216.   317. 
Chicago,  B.  &  Q.  R.  Co.  v.  Iowa  (v.  Cutts),  94  U.  S.  155,  24  L.  Ed. 

94),   45. 
Chicago,  B.  &  Q.  R.  Co.  v.  Kyle  (228  U.  S.  85,  57  L.  Ed.  741,  33  Sup. 

Ct.    440),    20. 
Chicago,  B.  &  Q.  R.   Co.  v.  Miller   (226  U.   S.  513,  57  L.   Ed.  323,  33 

Sup.   Ct.  155),  439. 


XXXVIII  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Chicago,  B.  &  Q.  R.  Co.  v.  Nebraska  (170  U.  S..  57,  42  L.  Ed.  948,  18 

Sup.  Ct.  513),  15. 
Chicago,  B.  &  Q.  R.  Co.  v.  Oglesby  (198  Fed.  153),  453. 
Chicago,   B.   &  Q.   R.   Co.  v.   Railroad  Com.   of  Wis.    (237  U.   S.  220, 

59   L.   Ed.  — ,   35   Sup.   Ct.   560),   19. 
C.   B.  &  Q.  V.  U.  S.   (157  Fed.  830,  85  C.   C.  A.  194),  67,  186,  335. 
Chicago,  B.  &  Q.  R.  Co.  v.  United  States  (195  Fed.  241,  115  C.  C.  A. 

193),  481. 
Chicago,   B.   &   Q.   R.    Co.  v.   U.   S.    (209  U.   S.   90.   52   L.   Ed.  698,  28 

Sup.   Ct.   439),   186,   371. 
Chicago   Fire   Proof,   etc.,   Co.  v.   Chicago   &  X.  W.   R.    Co.    (8   I.    C. 

C.  316),  346,  348. 
Chicago,   I.  &  L.  R.  Co.  v.  Hackett   (228  U.  S.  559,  57  L.   Ed.  966,  33 

Sup.    Ct.    581),    33. 
Chicago,   I.  &  L.  R.  Co.  V.  R.  R.   Com.  of  Ind.   (175   Ind.  630,  95   N. 

E.  364),   14. 
Chicago,   I.   &  L.   R.   Co..  v.  United   States   (219  U.   S.  486,   55  L.   Ed. 

305,   31  Sup.  Ct.  272),  38,  303,  358. 
Chicago,  K.   &  W.  R.   Co.  v.  Pontius   (157  U.   S.  209,  39  L.   Ed.  675, 

15    Sup.    Ct.    585),    33,    332. 
Chicago  Live  Stock  Ex.  v.  Chicago  G.  W.  R.   Co.   (10  I.  C.  C.  428),  ' 

91,   128,   339,  346. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Ackley  (94  U.  S.  179,  24  L.  Ed.  99),  45. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Becker  (32  Fed.  849,  35  Fed.  883),  10, 

335. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Iowa   (152  Iowa  317,  130  N.  W.  802). 
Chicago,  M.  &  St.  P.  R.   Co.  v.   Iowa   (145  U.   S.  632,  36  L.  Ed.  857, 

12    Sup.    Ct.    978),    335. 
Chicago,  M.   &  St.  P.  R.  Co.  v.  Iowa   (233  U.  S.  334,  58  L.  Ed.  988, 

34  Sup.   Ct.  592),  41,  68,  296.  335. 
Chicago,  M.   &  St.  P.   R.   Co.  v.   Kennedy   (232  U.   S.  626,  58  L.    Ed. 

762,   34   Sup.    Ct.   463,   28   S.   D.   94,   132   N.   W.   802),   35. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Keyes   (91  Fed.  47),  49. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Minneapolis  (232  U.  S.  430,  58  L.  Ed. 

671,    34    Sup.    Ct.    400,    115    Minn.    460,    133    N.    W.    169,    Ann.    Cas. 

1912  D.   1027),   15. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Minnesota   (134  U.  S.  418,  33  L.  Ed. 

970,  3  I.  C.  R.  209,  10  Sup.  Ct.  462,  702),  45,  60,  63,  339. 
Chicago,   M.   &  St.   P.   R.   Co.   v.   Polt   (232  U.   S.   165,   58   L.   Ed.   554, 

34  Sup.   Ct.   301,  26   S.  D.  378,   128   N.  W.  472),  35. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Solan   (169  U.  S.  133,  42  L.  Ed.  688, 

18    Sup.    Ct.    289),    32. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Tompkins   (17b  U.   S.  167.  44  L.   EJ. 

417,    20    Sup.    Ct.    336),    45,    49. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Arkansas   (86  Ark.   412,   111  S.  W.  456, 

219   U.    S.   453,   55   L.    Ed.   290,    31    Sup.    Ct.    275),    22. 


Table;  of  Cases  Cited.  xxxix 

[  References  are  to  Sections.  ] 

Chicago,   R.   I.   &  P.   R.   Co.  v.   Int.   Com.    Com.    (171   Fed.  680),    107, 

207,   222,   395,   462,  465. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Chicago  &  A.  R.  Co.  (3  I.  C.  C.  450, 

2  I.  C.  R.  581,  721),  345. 
Chicago,  R.  I.  &  P.  R.  Co.  z'.   Cramer   (232  U.   S.  490,  58  L.   Ed.  697, 

34    Sup.    Ct.   383,    153   Iowa    103,    133    N.    W.   387),   32,   439. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Hardwick  Farmers'  Elevator  Co.   (226 

U.   S.   426,   57   L.    Ed.   284,   33    Sup.    Ct.    174).   3,    4,   9,   25,   68. 
Chicago,   R.   I.   &  P.   R.   Co.   v.   Hubbell   (54   Kan.   232.   38   Pac.   266,   5 

I.    C.   R.   241),   180,   212. 
Chicago,   R.   I.   &  P.   R.   Co.  v.   Ketchum    (212   Fed.   986),   38. 
Chicago,   R.   I.   &   P.   R.   Co.   z\     Lena   Lumber     Co.    (99     Ark.     105, 

137  S.  W.  562),  297. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Railroad  Com.  of  Ind.  (175  Ind.  630,  95 

N.    E.    364),    13. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  R.  R.   Com.  of  Neb.   (85  Neb.  818,  124 

N.   W.   477),   49. 
Chicago,  St.  P.,  M.  &  O.  R.  Co.  v.  Latta  (226  U.  S.  519,  57  L.  Ed.  328, 

33  Sup.  Ct.  155,  184  Fed.  987,  106  C.   C.  A.  664),  439. 
Chicago,    St.    P.,    M.    &   O.    R.    Co.   v.   United    States    (162    Fed.    835), 

358,  371. 
Chicago   Sash    &  Door  Asso.  v.   Norfolk   &  W.   R.    Co.    (14   I.   C.    C. 

594),   348. 
Chicago  Union  Traction  Co.  v.  Chicago  (199  111.  579,  65  N.  E.  470),  49. 
Chicago  Wall   Paper   Alills  v.    General   Paper   Co.    (147    Fed.   491,   78 

C.  C.  A.  607,  2  Fed.  Anti-Trust  Dec.  1027),  486. 
Chiles  V.   Chesapeake   &   O.   R.   Co.    (218   U.   S.   71,   54   L.   Ed.   936,   30 

Sup.  Ct.  667),  29. 
Chin  Yow  v.   United   States   (208  U.   S.   8,   52   L.   Ed.   369,  28   Sup.   Ct. 

201),    316. 
China  &  Japan  Trading  Co.  v.  Georgia  R.  Co.   (12   I.  C.   C.  236),  93, 

339,  346,  486. 
Christie  Grain  &  Stock  Co.  v.  Board  of  Trade  of  Chicago   (125  Fed. 

161,  61   C.   C.  A.   11),  486. 
Cilley  V.  United  Shoe  Mach.   Co.    (152   Fed.  726),   492. 
Cilley  V.  United  Shoe   Mach.    Co.    (202   Fed.   598),  492. 
Cincinnati  v.   Louisville   &  N.   R.   Co.    (223  U.   S.  390,  56  L.   Ed.  481, 

32  Sup.   Ct.   267),   7. 
Cincinnati  &  C.  T.  Co.  v.  B.  &  O.  R.   Co.   (20  I.   C.  C.  486),  191,  222. 

400,  401. 
Cincinnati,   Freight   Bureau   of,  v.   Cincinnati,   N.   O.   &  T.   P.   Ry.   Co. 

(6  I.   C.   C.   195,  4   I.   C.   R.   592),   110. 
Cincinnati,    H.     &    D.     R.     Co.    v.    Int.    Com.    Com.    (206   U.    S.    142, 

51    L.    Ed.    995,    27    Sup.    Ct.    648),    162,    312,    317.    345,    394,    395,    406. 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Int.  Com.  Com.   (5  I.  C.  R.  391, 

167  U.   S.   479.   42   L.   Ed.   243,   17   Sup.   Ct.   896),   389. 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Int.  Com.   Com.   (162  U.  S.   184, 


XI,  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

40   L.    Ed.   935,    16    Sup.    Ct.    700),    67,    128,   204,    312,    335,    339,    348, 

389,   395. 
Cincinnati    Packet    Co.    v.    Catlettsburg    (105    U.    S.    559,    26    L.    Ed. 

1169),  56. 
Cincinnati,   P.    B.   S.   &  P.   P.   Co.  v.   Bay    (200  U.   S.   179,   50   L.   Ed. 

428,  26  Sup.  Ct.  208,  2  Fed.  Anti-Trust  Dec.  867),  69,  486. 
Cist  V.   Mich.   Cent.   R.   Co.    (10  I.   C.   C.  217),   335,   339. 
Citizens'  Wholesale   Supply  Co.  v.  Snyder   (201   Fed.  907),  486. 
City  Gas  Co.  v.  Baltimore  &  O.  R.  Co.  (ll  I.  C.  C.  371),  345,  346. 
City  of  Atchison  v.  Mo.  Pac.  Ry.  Co.   (12  I.  C.   C.  254),  416. 
City  of  Danville  v.  Southern  Ry.   Co.   (8   I.   C.   C.  571),  416. 
City  of  Spokane  v.  Nor.  Pac.  Ry.  Co.   (15  I.  C.  C.  376).  339. 
Claflin  V.   Houseman    (93  U.   S.   3   Otto.   130,   23   L.   Ed.   833),  292. 
Clark  &  Co.  v.  Buffalo  &  S.  R.  Co.   (18  I.  C.  C.  380),  40. 
Clark  Co.  (Fred  G.)  v.  Lake  Shore  &  M.  S.  Ry.  Co.  (11  I.  C.  C.  558), 

397. 
Clarke    (Rowena)  '  z'.    Central    R.    &    Bkg.    Co.    of    Ga.    (50    Fed.    338, 

15  L.  R.  A.  683,  1  Fed.  Anti-Trust  Dec.  17),  486. 
Classification — Western    No.    51 — Suspension    of    (25    I.    C.    C.    442), 

113.     See  also  Western   Classification. 
Class  Rates   between   Stations  in  La.   (33  L   C.   C.  302),  259,  398. 
Clegg  V.  St.  L.  &  S.  F.  R.  Co.  (203  Fed.  971,  122  C.  C.  A.  273),  358. 
Clement  v.   Louisville   &  N.   R.   Co.    (153   Fed.   979),   383. 
Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Hirsch  (204  Fed.  849,  123  C.  C.  A. 

145),    346,    358. 
Cleveland,    C.    C.    &   St.    L.    R.    Co.   v.   Illinois    (177   U.    S.   514,   44   L. 

Ed.  868,  20  Sup.   Ct.  722),  20. 
Clyde  Coal   Co.-  v.  Penn.  R.  Co.   (23  L  C.  C.  135),  107. 
Coal  Rates  from  Oak   Hills,   Colo.    (30  L    C.   C.   505),   395,   398. 
Coal  Rates  from  Oak  Hills,  Colo.  (35  L  C.  C.  193),  117,  397. 
Coal   Rates   from  Virginia    (30   L   C.   C.    635),   85. 
Coal  Rates  Stony  Fork  Branch   (26   I.   C.   C.  168),  439. 
Coca-Cola  Co.  v.  Deacon-Brown  Bottling  Co.   (200  Fed.   105),  486. 
Coca-Cola  Co.  v.  Gay-Ola  Co.   (200  Fed.  720),  486. 
Coe  V.  Errol  (116  U.  S.  517,  29  L.  Ed.  715,  6  Sup.  Ct.  475),  41,  68,  303, 

304,    335. 
Coe  V.  Louisville  &  N.  R.  Co.  (3  Fed.  775),  304,  305. 
Coffeyvil'le    Commercial    Club  v.   A.   T.    &   S.   F.   R.    Co.    (33   L   C.    C. 

122,   34   L    C.    C.   231),    183. 
Cofifeyville  Vitrified  Brick  &  Tile  Co.  v.  St.  Louis  &  S.  F.  Ry.  Co.  (12 

L    C.    C.   498),    117,   329,   392. 
Coke  Producers'  Asso.  v.  B.  &  O.  R.  Co.  (27  L  C.  C.  125),  87,  345. 
Coles  V.  Cent.  R.  &  B.   Co.   (86  Ga.  2.51.   12  S.   E.  749).  14,   17. 
College   Arms    Hotel   Co.   v.   Atlantic   C.   L.    R.    Co.    (61    Fla.    553.    54 

So.  459),  9. 
Collins  V.   Kentucky    (234  U.    S.   634,   58   L.    Ed.   1510,   34   Sup.   Ct.   924, 

141    Ky.   564,    133   S.   W.   233),   486. 


Table  of  Cases  Cited.  xli 

[  References  are  to  Sections.  ] 

Colorado  Coal  Traffic  Asso.  v.  C.  &  S.  R.  Co.  (19  I.  C.  C.  478),  350. 

Colorado   Free   Pass.   Situation   (26  I.   C.  C.  491),  342,  442. 

Colorado   Fuel   &  Iron   Co.  v.   So.   Pac.   R.   Co.    (6   I.   C.   C.  488),   88, 

90,    339,    346,    358,    363. 
Columbia   Grocery   Co.  v.   Louisville   &  N.   R.   Co.    (18   I.   C.   C.   502), 

108,    183. 
Commercial  Club  of  Duluth  v.  B.  &  O.  R.  Co.   (27  I.  C.  C.  639),  108, 

183, 
Commercial  Club  of  Omaha  v.  A.  &  S.  R.  Co.  (27  I.  C.  C.  302),  207, 

211,    213,    404. 
Commercial   Club   of  Omaha  v.   Chicago   &  N.   W.   Ry.   Co.    (7    I.   C. 

C.  386),  339,  346. 
Commercial    Club    of   Omaha   v.    Chicago,   R.    I.    &   P.    Ry.    Co.    (6    I. 

C.   C.   647),  253,   338. 
Commercial  Club  of  Omaha  v.   S.   P.  Co.   (20  C.   C.  631),  105,  119. 
Commercial  Coal  Co.  v.  B.  &  O.  R.  Co.   (15  T.  C.  C.  11),  101,  104. 
Commercial  Milling  Co.  v.  Western  Union  Tel.   Co.    (151  Mich.  425, 

115    N.    W.    698),    2. 
Commodity  Rates  to  Pacific  Coast  Terminals   (32  I.   C.   C.  611),  118. 
Commodity  Rates  between  Mo.   River  Points   (28   I.   C.   C.  265),  399. 
Commonwealth  v.  A.   C.  L.  R.  Co.   (106  Va.  61,  55  S.   E.  572,  7  L.   R. 

A.  (N.  S.)  1086,  117  Am.  St.  Rep.  983),  424. 
Commonwealth  v.  Keary    (198   Pa.   St.   500,  48  Atl.  472),  37. 
Commonwealth  v.  Interstate  R.  Co.  (187  Mass.  436,  73  N.  E.  530),  185. 
Commonwealth  v.  Norfolk  &  W.  R.  Co.  (ill  Va.  59,  68  S.  E.  351),  13. 
Commutation  Rate  Case  (21  I.  C.  C.  428),  185,  345,  389,  395,  442. 
Commutation  Tickets  to  School  Children   (17  I.  C.  C.  144),  185,  345. 
Compagnie   Francaise  v.   Board  of  Health   (186  U.  S.  380,  46  L.   Ed. 

1209,    22    Sup.    Ct.    811),    58. 
Compton   V.   Allen    (216   Fed.    537),   58. 
Concentration  of  Cotton   (26  I.  C.  C.  585),  403. 
Concord  &  M.  R.  Co.  v.  Boston  &  M.  R.  Co.   (68  N.  H.  464,  41  Atl. 

263),  9. 
Connolly  v.  Union   Sewer  Pipe  Co.   (184  U.   S.  540,  46  L.   Ed.  679,  22 

Sup.   Ct.  431,  2  Fed.  Anti-Trust  Dec.  118),  486. 
Connery  v.  Q.  O.  &  K.  C.  R.   Co.   (92  Minn.  20,  99  N.  W.  365),  42. 
Connor  v.  Vicksburg  &  M.  R.  Co.  (36  Fed.  273,  1  L.  R.  A.  331),  294, 

383. 
Consolidated  Forwarding  Co.  v.  Southern  Pac.   Co.   (9  I.  C.   C.  182). 

197,  338,  352,  358. 
Consolidated  Forwarding  Co.  v.  Southern  Pac.  Co.  (10  I.  C.  C.  590), 

197,    352,    432. 
Consolidated  Fuel  Co.  v.  A.  T.  &  S.  F.  R.  Co.   (27  I.  C.  C.  554),  343. 
Consolidated  Pump  Co.  v.  L.  S.  &  M.  S.  R.  Co.  (27  I.  C.  C.  519),  243. 
Continental  Securities   Co.  v.   Interborough   R.  T.  Co.   (165   Fed.  945), 

486. 


XLii  Table  op  Cases  Cited. 

[  References  are  to  Sections.  ] 

Continental  Wall  Paper  Co.  v.  Lewis  Voight  &  Sons  Co.   (212  U.  S. 

227,   53   L.   Ed.   486,   29    Sup.    Ct.   280),   486. 
Continental  Wall   Paper  Co.  v.  Lewis  Voight  &  Sons   Co.   (148  Fed. 

939,    78    C.    C.    A.    567),    486. 
Cook  V.  Marshall  County  Iowa  (196  U.  S.  261,  49  L.  Ed.  471,  25  Sup. 

Ct.   233),   58. 
Cooke  V.   Boston   &   L.   R.    Co.    (133   Mass.    185), -54. 
Cooley  V.  Board  of  Wardens,  12  How.  (53  U.  S.  299,  13  L.  Ed.  996),  56. 
Coomes  V.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  (13  L  C.  C.  192),  383. 
Copp   V.   Louisville   &   N.    R.    Co.    (43   La.   Ann.   511,   9    So.   441,   3   I. 

C.  R.  625,  46  Am.   &  Eng.  R.  Cases  634,  12  L.  R.  A.  725,  26  Am. 

St.  Rep.  198),  383,  405. 
Corey  v.   Independent   Ice   Co.    (207   Fed.  459),  492. 
Corn    Belt   Meat   Producers'  Asso.  v.   Chicago,   M.   &   Q.    R.    Co.    (14 

I.     C.     C.    376),    339. 
Corporation  Com.  of  N.   C.  v.  N.  &  W.  R.  Co.   (19  I.  C.   C.  303),  183, 

222. 
Corporation   Com.  of  N.   C.  v.  S.  A.  L.  R.   Co.    (161  N.  C.  271,  76  S. 

E.    554),    9. 
Corporation  Com.  of  Ok.  v.  A.  T.  &  S.  F.  Ry.  Co.   (31  I.  C.  C.  532), 

3,    6,    44,    62,    68,    259,    336,    398,    399. 
Cosby  V.  Richmond  Trans.  Co.   (23  I.  C.  C.  72).  346. 
Cosmopolitan  Shipping  Co.  v.   Hamburg-American   Packet   Co.  et  al. 

(13    I.    C.    C.   266),   335,   352. 
Cotting  V.  Godard   (183  U.  S.  79,  46  L.   Ed.  92,  22  Sup.  Ct.  30),  45. 
Councill   v.   Western    &   A.    R.    Co.    (1    I.    C.    C.   339,    1    I.    C.   R.   638), 

216,   406. 
Counselman    v.    Hitchcock    (142   U.    S.    547,    35    L.    Ed.    1110,    12    Sup. 

Ct.    195),    299,    389. 
Covington,    etc.,    Brdg.    Co.   v.    Kentucky    (154    U.    S.    204,    38    L.    Ed. 

962,    14    Sup.    Ct.    1087),    3,    5,    53. 
Covington  &  Lexington  Turnpike   Road  Co.  v.   Sandford    (164  U.  S. 

578,  41  L.  Ed.  560,  17  Sup.  Ct.  198),  45,  49,  82,  88,  124,  125. 
Covington  Stock  Yards  Co.  v.  Keith  (139  U.  S.  128,  35  L.  Ed.  73,  11 

Sup.  Ct.  461),  41,  197. 
Cowan    &    Bond    (39    Fed.    54),    345. 
Coxe  Bros.  &  Co.  v.  Lehigh  V.  R.  Co.   (4  I.  C.  C.  535,  2  I._  C.  R.  195, 

229,    3    I.    C.    R.   460),    339,    345,    395. 
Coyle  V.   So.   Ry.   Co.   (112   Ga.   121,  37   S.   E.   163),   37. 
Cozart  V.   Southern   Ry.    Co.    (16   I.   C.   C.  226),  29,   346. 
Cram   v.    Chicago,    B.    &   Q.   R.   Co.    (84   Neb.   607,   122   N.   W.   31,   26 

L.   R.  A.    (N.   S.)    1022,  85  Neb.  586,   123   N.   W.   1045,  26  L.   R.  A. 

(N.  S.)  1028,  19  Ann.  Cas.  170).  20,  25. 
Cramer  v.   C.  R.   &  I.   R.   Co.   (153  Iowa  103,   133  N.  W.  387),  439. 
Crane  Iron  Wrrks  v.  T'nited  States   (209  Fed.  238),  121,  171,  195,  249, 

313,    338,    400. 


Tablk  of  Cases  Cited.  xliii 

[  References  are  to  Sections.  ] 

Crane  Iron  Works  v.   C.  of  N.  J.  R.   Co.   (17  I.  C.  C.  514),  171,   195, 

338,  400. 

Crane  R.  Co.  v.  Philadelphia  &  R.  R.  Co.  (15  I.  C.  C.  248),  195,  338, 

400. 
Craven   v.   Carter-Crume   Co.    (92   Fed.   479,   34   C.    C.   A.   479,    1    Fed. 

Anti-Trust  Dec.  983),  487. 
Crescent   Brewing   Co.   v.   Or.   S.   L.    R.    Co.    (24    Idaho   106,   132    Pac. 

975),    58. 
Cresent   Coal  &  Mining  Co.  v.   C.   &  E.   I.   R.   Co.    (24  I.   C.   C.   149), 

339,  358. 

Crews  V.  Richmond  &  D.  R.  Co.   (1  I.  C.  C.  401,  1   I.  C.  R.  703),  12, 

163,    345. 
Crouch  V.  G.  N.  R.  Co.  (11   Ex.  742,  25  L.  J.  Ex.  137),  157. 
Cudahy  Packing  Co.  v.  G.  T.  W.  R.  Co.  (215  Fed.  93),  337. 
Cumberland  Tel.  &  Tel.  Co.  v.  Memphis   (198  Fed.  955),  453. 
Curry  v.  Kansas  &  C.  P.  Ry.  (58  Kan.  6,  51  Pac.  576),  342. 
Curry  &  Whyte  v.  D.  &  I.  R.  Co.  (30  I.   C.  C.  1),  208,  345,  383. 
Curry  &  Whyte  v.  D.  &  I.  R.  Co.   (32  I.   C.  C.  162),  345. 
Cutting  V.   Fla.   Ry.'  &  Nav.   Co.   (46  Fed.   641),  335. 

D. 

Dairyman's    Supply    Co.   v.    P.    R.    Co.    (28    I.    C.    C.   406),   442. 
Dallas  Freight  Bureau  v.  Austin  &  N.  W.  R.  Co.  (9  I.  C.  C.  68),  348. 
Dallas  Freight  Bureau  v.  Gulf,  C.  &  S.  F.  Ry.  Co.  (12  I.  C.  C.  223), 

110,    250,    339,    383,    392. 
Dallas  Freight  Bureau  z    Missouri,  Kas.  &  Tex.  Ry.  Co.  (12  I.  C.  C. 

427),   339,   392. 
Dallas  Freight  Bureau  v.  Texas  Pac.  Ry.  Co.   (8  I.  C.  C.  33),  348. 
Daniel  Ball  (The)  v.  United  States  (10  Wall.  77  U.  S.  557,  19  L.  Ed. 

999),    3,    55,    67,   335. 
Daniels  v.  Chicago,  M.  &  St.  P.  R.  Co.  et  al.  (6  I.  C.  C.  458),  304. 
Daniels  v.  Chicago,  R.  I.  &  P.  R.  Co.  (6  I.  C.  C.  458),  153,  199,  346, 

348. 
Danville  v.  S.  R.  Co.  (8  I.  C.  C.  571),  416. 
Danville  v.  Southern  Ry.  Co.   (8  I.  C.  C.  409),  346. 
Darius   Coal  Trans.   Co.  v.  White  Star  Line   (186  Fed.   63,  108   C.   C. 

A.   165),   486. 
Darling  v.  B.  &  O.  R.  Co.  (15  I.  C.  C.  78),  88. 
Darnell  v.  Edwards  (209  Fed.  99),  43. 
Darnell  v.  I.  C.  R.  Co.  (190  Fed.  656),  407. 
Darnell  v.    I.   C.   R.   Co.    (225   U.   S.   243,   56   L.   Ed.   1072,   32   Sup.    Ct. 

760,   190  Fed.   656),  294. 
Darnell-Taenzer   Lumber   Co.  v.   So.   Pac.   Co.    (221   Fed.   890,  C. 

C.  A.  ,   190   Fed.   659),   208,   383,   407. 

Darragh  v.  Wetter  Mfg.  Co.   (78  Fed.  7,  23  C.   C.  A.  609),  60. 


xuv  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Davis  V.  Booth  (131  Fed.  31,  65  C.  C.  A.  269,  2  Fed.  Anti-Trust  Dec. 

566),    486. 
Davis  V.  Booth  (195  U.  S.  636,  49  L.  Ed.  355,  25  Sup.  Ct.  793),  486. 
Davis  V.  C.  C.  C.  &  St.  Louis  R.  Co.   (217  U.  S.  157,  54  L.  Ed.  708, 

30  Sup.   Ct.  463,   146  Fed.  403),  42,  56. 
Davis  V.  Gray  (16  Wall.,  83  U.  S.  203,  21  L.  Ed.  447),  60. 
Davis  V.  Pere  Marquette  R.  Co.   (10  I.  C.  C.  405),  178. 
Davis  V.  S.  A.  L.  R.  Co.   (136  Ga.  278,  71  S.  E.  428),  32. 
Davis  V.   State   (68  Ala.  58,  44  Am.  Rep.   128),  45. 
Davis  V.  United  States   (104  Fed.  136,  43  C.  C.  A.  448),  17«,  386. 
Davis  Bros.  Lumber  Co.  v.  C.  R.  L  &  P.  R.  Co.  (26  L  C.  C.  257),  401. 
De    Bary   v.    Louisiana    (227   U.    S.    108,    57    L.    Ed.    441,    33    Sup.    Ct. 

239),   58. 
Debs,  Re.  (158  U.  S.  564,  39  L.  Ed.  1092,  15  Sup.  Ct.  900,  1  Fed.  Anti- 
Trust    Dec.    565),    486. 
Decatur  Nav.  Co.  v.  L.  &  N.  R.  Co.   (31  L  C.   C.  281),  121,  151,  338, 

375,  400,   401. 
Delaware,  L.  &  W.  R.  Co.  v.  Central  Stock  Yard  &  Transit  Co.   (45 

N.   J.    Eq.   50,    6    L.    R.   A.    855,    17   Atl.    146),   45. 
Delaware,  L.  &  W.  R.  Co.  v.  Frank  (110  Fed.  689,  2  Fed.  Anti-Trust 

Dec.  81),  37,  486. 
Delaware.    L.   &  W.   R.    Co.  v.   Int.   Com.   Com.    (155   Fed.   512),   465, 
Delaware,  L.  &  W.  R.  Co.  v.  Int.  Com.  Com.   (166  Fed.  498),  465. 
Delaware,  L.  &  W.  R.  Co.  v.  Int.  Com.  Com.  (166  Fed.  499),  138,  157, 

344,    345,    395.    465. 
Delaware,  L.   &  W.  R.  Co.  v.  Kutter   (147   Fed.  51,  77   C.   C.  A.  315, 

2  Fed.  Anti-Trust   Dex.   1021),  344,  386. 

Delaware  L.  &  W.  R.  Co.  v.  Public  Utilities  Com.  (85  N.  J.  L.  28,  88 

Atl.   849),   39. 
Delaware,  L.  &  W.  R.  Co.  v.  Public  Utility  Comrs.  (84  X.  J.  L.  619, 

87  Atl.  801),  37,  38,  39. 
Delaware,  L.  &  W.  R.   Co.  v.  Rutter   (203  U.  S.   588,  51  L.   Ed.  330, 

27   Sup.   Ct.  776),  344,  386. 
Delaware,    L.   &  W.   R.   Co.   v.   United   States    (231   U.   S.   363,   58    L. 

Ed.  269,  34  Sup.   Ct.  65),   63,  343. 
Delaware,  L.  &  W.  R.  Co.  v.  Van  Santwood  (216  Fed.  252),  19. 
Delaware   State    Grange  v.   New   York,   P.    &   N.   R.    Co.    (3   I.    C.    C. 

309,    2    I.    C.    R.    187),    126,    392. 
Delaware   State   Grange  v.   New  York,   P.   &   N.   R.   Co.    (4   I.    C.    C. 

588,   3   I.    C.    R.   554),   88. 
Delaware  State  Grange  v.  New  York,  P.  &  N.  R.  Co.  (5  I.  C.  C.  161, 

3  I.  C.  R.  828),  416. 

Delk  V.  St.  L.  &  S.  F.  R.  Co.   (220  U.  S.  580,  55  L.-  Ed.  590,  31  Sup. 

Ct.    617),    41. 
Delray  Salt  Co.  v.  Michigan  C.  R.  Co.  (18  I.  C.  C.  268),  110. 
Deming  Lumber  Co.  v.  S.  P.   Co.   (24  L   C.  C.  598),  213. 
Demurrage   Charges   State  of  Calif.   (25   I.   C.   C.  314),  345. 


Table  of  Cases  Cited.  xi,v 

[  References  are  to  Sections.  ] 

Denaby  Main  Colliery  Co.  v.  Manchester,  etc.,  R.   Co.   (11  App.  Cas. 

97),    158. 
Denison  Light  &  Power  Co.  v.   Missouri,  K.  &  T.  Ry.  Co.   (10  I.  C. 

C.    337),    90. 
Dennehy  v.  McNulta   (86  Fed.  825,  30  C.   C.  A.   422,  41  L.   R.  A.  609, 

1   Fed.  Anti-Trust  Dec.   855),   487. 
Denver  &  N.  O.  R.  Co.  v.  A.  T.  &  S.  F.  R.  Co.  (15  Fed.  650),  304. 
Denver  &   R.   G.   Co.  z:   Baer   Bros.   (187   Fed.  485,  109  C.   C.   A.  337), 

207,  317,  383,  407. 
Denver  &  R.  G.  R.  Co.  v.  Baer  Bros.  (209  Fed.  577,  126  C.  C.  A.  399), 

215,    216,    317,    407. 
Denver  &  R.   G.   R.   Co.  v.   Baer  Bros.    (200   Fed.   614),  407. 
Denver  &  R.  G.  R.  Co.  v.  Int.  Com.  Com.   (195  Fed.  968),  317. 
De  Rochemont  v.   N.  Y.   C.   &  H.   R.   R.   Co.    (75   N.   H.   158,  71  Atl. 

868),  42. 
Dese'l-Boettcher  Co.  v.  Kansas  City  So.  Ry.  Co.  (12  I.  C.  C.  220),  110. 
Des  Moines  Commodity  Rates  (34  I.  C.  C.  281),  88. 
Des   Moines    Gas    Co.  v.   Des   Moines    (238   U.    S.    153,   59   L.    Ed.  — , 

35   Sup.    Ct.    811),   47. 
Detroit   Board    of   Trade   v.    Grand   Trunk   R.    Co.    (2    I.    C.    C.   315,    1 

I.    C.    R.    699,   2    I.    C.    R.    199),   345,    346. 
Detroit,  G.  H.  &  M.  Ry.  Co.  v.  Int.  Com.   Com.   (74  Fed.  803,  21   C. 

C.  A.   103,  43  U.   S.  App.  308),   339,  345,   346,  348.   392,   406. 
Dewey  Bros.  v.  Baltimore  &  O.  R.  Co.  (11  I.  C.  C.  481),  177,  348,  383. 
Diamond  Match   Co.  v.  Ontonagon   (188  U.   S.  82,  47  L.   Ed.   394,  23 

Sup.   Ct.   266),  55. 
Diamond  Mills  Co.  v.  Boston  &  M.  R.  Co.   (9  I.  C.  C.  311),  163,  346, 

348. 
Dixie  Dairymen's  Asso.  v.  Y.  &  M.  V.  R.  Co.   (27   I.   C.   C.  618),  88. 
Dixie  Tob.  Co.  v.  N.  &  W.  R.  Co.  (Ill  Ga.  813,  69  S.  E.  1106),  439. 
Doctor  Miles  Medical  Co.  v.  Jaynes  Drug  Co.   (149  Fed.  838),  486. 
Doctor  Miles  Medical  Co.  v.  Jno.  D.  Park  &  Sons  Co.  (164  Fed.  803, 

90    C.    C.    A.    579),    486. 
Douglas  &  Co.  V.  C.  R.  I.  &  P.  R.  Co.  (21  I.  C.  C.  541).  395. 
Douglas,   Ga.,   Mayor   &   Council   of,  v.  Atlanta,   B.   &  A.   R.    Co.    (28 

I.    C.    C.   445),    108. 
Dow   z:    Beide'lman    (125   U.   S.    680,    31   L.    Ed.    841,   2    I.    C.    R.   56,   8 

Sup.   Ct.   1028),   45,   82. 
Downie  Coal  Co.  v.  N.  P.  R.  Co.   (31  I.  C.  C.  142),  121. 
Dudley  v.   Mayhew   (3  N.  Y.  9),  292. 
Dueber   Watch-Case    Mfg.    Co.   v.   Howard   Watch    &    Clock    Co.    (55 

Fed.  851,  1  Fed.  Anti-Trust  Dec.   178),  492. 
Dueber   Watch-Case    Mfg.    Co.   v.   Howard   Watch    &    Clock    Co.    (66 

Fed.  637,  14  C.  C.  A.  14,  1  Fed.  Anti-Trust  Dec.  421),  489,  492. 
Dugan  V.   Bridge    Co.    (27   Pa.   St.   303),   54. 

Duluth  Log.  Co.  V.  Minn.  &  Int.  Ry.  Co.  (15  I.  C.  C  627),  140,  218. 
Duluth,  Minn.,  Log  Rates   (29  I.  C.  C.  420),  101. 


xivVi  Table:  of  Cases  Cited. 

[  References  are  to   Sections.  ] 

Duluth   Shingle   Co.  v.   Duluth   S.   S.   &  A.   R.   Co.    (10   I.   C.   C.   4S9), 

160,    346. 
Duncan   v.   Atchison,   T.    &   S.    F.   R.    Co.    (6   I.    C.    C.   85,   3    I.    C.    R. 

256,   4   I.   C.    R.  385),   181,  206,   339,  345,   346,   348,   358,   383. 
Duncan  v.  Nashville,   C.   &  St.  L.  Ry.  Co.   (16  I.   C.   C.  590),   112,   165, 

345. 
Duncan  v.  N.  C.  &  St.  L.  Ry.  Co.  (21  I.  C.  C.  186),  166. 
Duncan  v.   N.   C.   &  St.   L.   Ry.   Co.    (35   I.   C.   C.  477),   166,   348. 
Durham  v.   111.   Cent.   R.   Co.   (12  I.   C.   C.  37),  248. 


East  Jersey  R.  R.  &  T.  Co.  v.  C.  R.  R.  Co.  of  N.  J.  (36  I.  C.  C.  146),  399. 
East  St.  Louis  Cotton  Oil  Co.  v.  St.  L.  &  S.  F.  R.  Co.   (20  I.  C.   C. 

37),   91. 
East  Tenn.  Va.  &  Ga.  Ry.  Co.  v.  Int.  Com.   Com.   (99  Fed.  52,  39  C. 

C.  A.  413), 147: 
East  Tenn.,  Va.   &  Ga.  Ry.  Co.  v.   Int.   Com.   Com.   (181  U.   S.  1,  45 

L.    Ed.   719,   21    Sup.    Ct.   516),   92,   93,    109,    128,    147,    153,    199,   312, 

346,    348,    406. 
Eastern   Shore   Development   S.   S.   Co.  v.   B.   &  O.   R.   Co.    (32   I.   C. 

C.    238),    401. 
Eastern   States   Lumber    Dealers'   Asso.   v.   United   States    (234   U.    S. 

600,  58   L.   Ed.   1490.  34   Sup.    Ct.   95),  486. 
Eastern  Wheel  Mfg.  Co.  v.  A.  &  V.  R.  Co.  (27  I.  C.  C.  370),  392. 
Eaton  V.  Cincinnati,  H.  &  D.  R.   Co.   (11   I.  C.  C.  619),  87,  383. 
Edwards  v.   Nashville.   C.   &  St.  Ry.   Co.   (12   I.   C.   C.  247),  29. 
Edwards  &  Bradford  Lumber  Co.  v.  C.  B.  &  Q.  R.  Co.   (25  I.  C.  C. 

93),   244,   348. 
Edmunds  v.   III.   Cent.   R.   Co.   (80  Fed.   78),  213,   383. 
Eichenberg  v.   Southern  Pac.   Co.    (14   I.   C.   C.  250),  10,   68,   139,  222, 

335,  336,  337,  346. 
Elevation  Allowances  at  St.  Louis   (30  I.  C.  C.  696).  339. 
Elk  Cement  &  Lime  Co   v.  B.  &  O.  R.  Co.  (22  I.  C.  C.  446),  183. 
Ellis  V.  Inman,  Poulsen  &  Co.   (124  Fed.  956,  2  Fed.  Anti-Trust  Dec. 

268),    486. 
Ellis  V.  Inman,  Poulsen  &  Co.  (131  Fed.  182,  65  C.  C.  A.  488,  2  Fed. 

Anti-Trust    Dec.    577),    486. 
Ellis   V.    Int,   Com.   Com.    (237   U.   S.   434,   59   L.    Ed.         ,   35   Sup.    Ct. 

645),    220,    310,    389. 
El  Paso  &*N.  E.  R.  Co.  V.  Gutierrez   (215  U.  S.  87,  54  L.   Ed.  106.  30 

Sup.    Ct.    21),    33. 
Elvey  V.  111.  Cent.  R.  Co.   (3  I.   C.   C.  652,  2  I.   C.  R.  804),  345,  346. 
Elwood  Grain  Co.  v.  St.  J.   &  G.   I.  R.  Co.   (2C2  Fed.  845,  121  C.   C. 

A.   153),   371. 
Emerson  v.  B.  &  M.  R.  Co.   (75  N.  H.  427,  75  Atl.  329),  38. 
Emlenton   Petroleum   Rates    (29   I.   C.   C.   519),   348. 


Table  of  Cases  Cited.  xlvii 

[  References  are  to  Sections.  ] 

Empire  Coke  Co.  v.  B.  &  S.  R.  Co.  (31  I.  C.  C.  573),  399. 
Engemoen  v.  C.  St.  P.  M.  &  O.  R.  Co.  (210  Fed.  896),  358. 
Enterprise  Fuel   Co.  v.  Penn.   R.   Co.   (16   I.   C.   C.  219),  111,   149,  338, 

347,   400. 
Enterprise  Mfg.  Co.  v.  Georgia  R.  Co.  (12  I.  C.  C.  451),  93,  339,  346, 

486. 
Enterprise  Transportation  Co.  v.  Penn.  R.  Co.   (12  I.  C.   C.  326),  14, 

195,   249,   335,   337,   338. 
Erb  V.   Morasch    (177   U.   S.   584,  44   L.    Ed.   897,   20   Sup.    Ct.   819),   20. 
Erie  R.  Co.  v.  New  York  (233  U.  S.  671,  58  L.   Ed.  1149,  34  Sup.  Ct. 

756,    198    N.    Y.    369,   91    N.    E.    849,    29    L.    R.   A.    (N.    S.)    240,    139 

Am.   Rep.  829,   19  Ann.   Cas.  811),  22,   33. 
Erie  R.   Co.  v.  United  States    (200  Fed.  406),  481. 
Erie   R.   Co.  v.  Williams   (233  U.   S.  685,   58   L.   Ed.   1155,  34   Sup.   Ct. 

761,    199    N.   Y.   525,   92    N.    E.    1084,    136   App.    Div.    902,    120    N.   Y. 

Sup.    1023),    22,    23. 
Escabana   Co.  v.   Chicago    (107  U.   S.   678,   27   L.   Ed.   442,   2  Sup.   Ct. 

185),   54. 
Eschner  v.    P.    R.    Co.    ^18    I.    C.    C.    60),   38. 
Evans  V.  O.  R.  &  N.  Co.  (1  I.  C.  C.  325),  88. 
Evans  V.  Union  Pac.  R.  Co.   (6  I.  C.  C.  520),  110,  339. 
Evens  &  Howrard  Fire  Brick  Co.  v.  St.  L.,  I.  M.  &  S.  R.   Co.   (25   I. 

C.    C.   141),   394. 
Evershed  v.  London  &  N.  W.  R.  Co.  (33  App.  Cas.  1029),  158. 
Ewing   v.    Leavenworth,    226    U.    S.    464,    57    L.    Ed.    303,    33    Sup.    Ct. 

157),    69. 
Excursion  Car  Co.  v.  P.  R.  Co.   (3  L  C.  C.  577),  197. 
Ex  parte,  Benson  (18  S.  C.  38),  133. 
Ex  parte  Debs  see  Debs,  re. 
Ex  parte   Koehler    (30   Fed.   867),   335,   345. 
Ex  parte  Koehler  (31  Fed.  315,  12  Sawy.  446).  442. 
Ex   parte   Lennon    (64   Fed.   320,   22  U.   S.   App.   561),   347. 
Ex  parte  Lennon  (166  U.  S.  548,  41  L.  Ed.  liiO,  17  Sup.  Ct.  658),  347. 
Ex  parte  Metropolitan  Water  Co.   (220  U.   S.  539,  55  L.   Ed.  576,  31 

Sup.    Ct.   600),   320,   453. 
Ex  parte  McNiel   (80  U.  S.  13  Wall.  236.  20  L.  Ed.  624),  292. 
Ex  parte  Oklahoma  (220  U.  S.  191,  55  L.  -Ed.  431,  31  Sup.  Ct.  426),  58. 
Ex  parte  O'Neill   (83  Pac.  104),  87. 
Ex  parte  Young  (209  U.  S.  123,  52  L.   Ed    714,   28  Sup.   Ct.  441),  See 

Young    Ex   parte. 
Export  Rates  on  Grain  &  Grain  Products  (31  L  C.  C.  616),  346. 
Export   Shipping   Co.   v.   Wabash    R.    Co,    (14   L    C.    C.   437),    157,   345, 

383,    442,   444. 


Fabrication   in  Transit   Charges   (29   L   C.   C.  70),   169.  358. 

Falls  &  Co.  V.  Chicago,  R.  L  &  P;  Ry.  Co.   (15  L   C.  C.  269),  205,  383. 


XLViii  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Farmers'   Loan   &  Trust   Co.  v.   Northern   Pac.   R.   Co.    (83   Fed.   249), 

335,   348,   395,   406. 
Farmers',   Merchants'   &  Shippers'   Club  v.  Atchision,  T.   &  S.   F.   R. 

Co.    (12   I.    C.    C.   351),   90,    91,    105. 
Farmers'  Warehouse  Co.  v.  Louisville  &  N.  R.  Co.  (12  L  C.  C.  457), 

339,    383. 
Farrar  v.  East  Tenn.,   Va.  &  Ga.  Ry.  Co.   (1  L  C.  C.  480,  1  L  C.  R. 

764),    99. 
Farrar  v.  Southern  Ry.  Co.   (11  L  C.  C.  632),  96,  339,  348. 
Farrar  v.  So.  Ry.  Co.  (11  L  C.  C.  640),  99. 
Federal   Sugar   Refining   Co.  v.   B.    &   O.   R.    Co.    (17   L   C.   C.  40,  20 

L    C.    C.    200),    9,    197,    335,    343. 
Federal  Sugar  Refining  Co.  v.  B.  &  O.  R.  Co.  (20  I.  C.  C.  200),  140, 

197,  343,  404. 
Federal  Sugar  Refining  Co.  v.   C.  of  N.  J.  R.   Co.   (35  L  C.   C.  488), 

121,    194,   338,   344,    375. 
Fels  V.   P.   R.    Co.  .(23   L   C.    C.   483),   254,  392,  408. 
Fels  V.  P.  R.  Co.  (25  L   C.  C.  154),  90. 
Ferguson  Saw  Mill  Co.  v.  St.  Louis,  L  M.  &  S.  R.  Co.   (18  L  C.  C. 

396,   398),    107. 
Fewell  V.  Richmond  &  D.  R.  Co.  (7  L  C.  C.  354),  348. 
Field  V.  Barber  Asphalt  Paving  Co.  (117  Fed.  925,  2  Fed.  Anti-Trust 

Dec.  192),  486. 
Fifeld  V.  Barber  Asphalt  Paving  Co.  (194  U.  S.  CIS,  48  L.  Ed.  1142,  24 

Sup.   Ct.  784,  2  Fed.  Anti-Trust   Dec.   555),   486. 
Field  V.   Clark   (143  U.  S.  649,  36  L.  Ed.  294,  12  Sup.   Ct.  495),  54. 
Field  V.  So.  R.  Co.  (13  L  C.  C.  298),  442. 
Fitchburg  R.   Co.  v.  Gage   (12   Gray  393),   133. 
Fitzgerald   v.    Fitzgerald,   etc.,   Construction   Co.    (41    Neb.   374,   59   N. 

W.    838),    383. 
Five  Per  Cent.  Case  (31   L  C.  C.  351,  32  L  C.  C    325),  82,  88,  141.  223, 

259,     342,    398,    399. 
Flaccus  Glass  Co.  v.  Cleveland,  etc.,  R.  Co.   (14  L   C.  C.  333).  339. 
Fleitmann  v.  United  Gas  Improvement  Co.  (211  Fed.  103),  492. 
Fletcher  v.  Peck  (6  Cranch  10  U.  S.  107,  3  L.  Ed.  162),  7. 
Flint  V.   Stone-Tracy   Co.    (220  U.   S.   107,   55   L.   Ed.   389,   31   Sup.    Ct. 

342),    59. 
Florida  E.  C.  R.  Co.  v.  United  States  (234  U.  S.  167,  58  L.  Ed.  1207, 

34   Sup.    Ct.    867),    309,    312. 
Florida  Fruit  &  Vegetable  Asso.  v.  A.  C.  L.  R.  Co.  (17  I.  C.  C.  552). 

126. 
Flour   City   S.    S.    Co.   v.   L.   V.    R.    R.    Co.    (24    I.    C.   C.    179),   338,   346, 

347,    400. 
Folmer  &  Co.  v.  Great  Nor.  Ry.  Co.   (15   L  C.  C.  33).  358. 
Foot  V.  Buchanan  (113  Fed.  156,  2  Fed.  Anti-Trust  Dec.  103),  486. 
Foote  V.  Stanley     (232  U.   S.  494,  58  L.   Ed.  698,  34  Sup.  Ct.  377),  58. 
Ford  V.  M.  C.  R.  Co.  (19  I.  C.  C.  507),  81. 


Tabi^E  of   Cases  Cited.  xi,ix 

[  References  are  to  Sections.  ] 

Foreman  v.  Board  of  Com'rs  (64  Minn.  371,  9  N.  W.  737),  49. 
Forest  City  Freight  Bureau  v.  A.  A.  R.  Co.  (13  I.  C.  C.  118),  392. 
Forest  City  Freight  Bureau  v.  A.  A.  R.  Co.  (18  I.  C.  C.  205),  81,  88. 
Forster  Bros.  v.  Duluth,  etc.,  Ry.  Co.   (14  I.  C.   C.  232),  383,  391. 
Fort  Scott  Industrial  Asso.  v.  St.  L.  &  S.  F.  R.  Co.  (29  I.  C.  C.  629), 

348. 
Fort  Smith  Traffic  Bureau  v.   St.  Louis  &  S.   F.   R.   Co.   (13  I.   C.   C. 

651),   339. 
Foster  v.  Cleveland,  C.  C.  &  St.  L.  Ry.  Co.   (56  Fed.  434),  336. 
Foster  v.  Davenport  (22  How.  63  U.  S.  244,  16  L.  Ed.  248),  56. 
Fourche  River  Lumber  Co.  v.  Bryant  Lumber  Co.   (97  Ark.  623,   135 

S.    W.    796),    186. 
Fourche   River   Lumber   Co.   v.   Bryant   Lumber   Co.    (230  U.    S.   816, 

57  L.  Ed.  1498,  33  Sup.  Ct.  887),  186,  197,  371. 
Fourth  Section  Violation  in  Rates  on  Sugar  (31  L  C.  C.  511),  348. 
Fourth  Section  Violations  in  S.  E.   (30  L  C.  C.  153,  32  L  C.   C.  61), 

108,   244,   348. 
Francis  v.  United   States   (188  U.   S.  375.  47  L.   Ed.  508,  23   Sup.   Ct. 

334).    58. 
Franke  Grain  Co.  v.  111.  C.  R.  Co.  (27  I.  C.  C.  625),  212,  358,  359,  360. 
Franklin  v.   P.   &  R.   R.   Co.    (203   Fed.   134),  407. 
Eraser  v.   Duffey    (196   Fed.   900),  486. 
Freight   Bureau  of   Cincinnati  v.   Cincinnati,   N.   O.   &  T.    P.   Ry.   Co. 

(6   I.   C.   C.   195,  4   I.   C.  R.   592),   100,   339,   352,   395,  648. 
Freight  Bureau  of  Cincinnati  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  (7 

I.    C.    C.    180),    339,    346. 
Freight  Rates  from  Minnesota  Points  (32  I.  C.  C.  361),  6,  44. 
Fry  V.  State    (63  Ind.  552),  37. 
Fullerton  Lumber  &  Shingle  Co.  v.  B.  B.  &  B.  C.  R.  Co.  (25  I.  C.  C. 

376),   68. 


Gaines  v.  Seaboard  A.  L.  R.  Co.  (16  I.  C.  C.  471),  29,  346. 
Gallagher  v.  Keating  (27  Misc.  Rep.  131,  58   N.  Y.   Sup.  366),  13. 
Gallogly  V.   Cincinnati,  H.   &  D.  R.   Co.    (11   I.   C.   C.   1),   175,   383. 
Galveston  Com.  Asso.  v.  A.  T.  &  S.  F.  R.  Co.  (25  I.  C.  C.  216),  175. 
Galveston,  H.   &  S.  A.   Ry.  Co.  v.  Crow   (117  S.  W.   170),  439. 
Galveston,   H.   &  S.   A.   Ry.   Co.  v.  Texas    (210  U.   S.  217,   52   L.   Ed. 

1031,    28    Sup.    Ct.    638),    59. 
Galveston,   H.   &   S.   A.   R.   Co.  v.  Wallace    (223   U.   S.   481,   56   L.   Ed. 

516,  32   Sup.   Ct.  205,   117   S.  W.   169),  34,  292,  295,  439. 
Gamble-Robinson  Com.  Co.  v.   C.  &  N.  W.  R.  Co.   (168  Fed.   161,  94 

C.   C.  A.  217,  21"  L.  R.  A.   (N.  S.)   982,   16  Ann.   Cas.  613),  176. 
Gardner  v.  Southern  Ry.   Co.   (10  I.  C.   C.  342),  346,  348,  383. 
Garrison  v.  Southern   Ry.   Co.   (150  N.   C.   575,  64  S.   E.  578),  25. 
Gatton   V.    Chicago,    R.    I.    &    P.    Ry.    Co.    (95    Iowa    112,    62    N.    W. 

589,    28    L.    R.    A.    556,    5    I.    C.    R.    474),    383,    443. 


I,  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Geer  v.  Connecticut  (161  U.  S.  519,  40  L.  Ed.  793,  16  Sup.  Ct.  600),  58. 
General   Electric   Co.  v.   New  York   C.   &  H.   R.   R.   Co.    (14   I.   C.  C. 

237),    143,    171,    206,    404. 
General  Electric  Co.  v.  Wise   (119  Fed.  922,  2  Fed.  Anti-Trust  Dec. 

205),   486. 
Georgetown  Ry.  &  L.  Co.  v.  N.  &  W.  Ry.  Co.   (22  I.  C.  C.  144),  95. 
Georgia  Fruit  Exchange  v.  So.  Ry.  Co.   (20  I.  C.  C.  623),  115,  122. 
Georgia  Peach  Growers'  Asso.  v.  Atlantic  C.  L.   R.   Co.   (10  I.  C.  C. 

255),    88,   339. 
Georgia  R.  &  B.   Co.  v.  Smith   (70  Ga.  694),  63. 
Georgia  R.  &  B.  Co.  v.   Smith   (128  U.  S.  174,  32  L.  Ed.  377,  9  Sup. 

Ct.   47),    63. 
Gerke  Brewing  Co.  v.  Louisville  &  N.  R.  Co.   (5  I.  C.  C.  596,  4  I.  C. 

R.    267),    348. 
German  Alliance  Ins.  Co.  v.  Lewis   (233  U.  S.  389,  58  L.   Ed.  1011,  34 

Sup.    Ct.   612),   43,   61. 
Gibbons  v.  Ogden  (9  Wheat  1,  6  L.  Ed.  23,  70)    2,  4,  15,  54,  62. 
Gibbs  V.  McNeeley  (102  Fed.  594,  2  Fed.  Anti-Trust  Dec.  25),  492. 
Gibbs  V.  McNeeley   (118  Fed.   120,  55  C.   C.  A.  70,  60  L.  R.  A.  152,  2 

Fed.  Anti-Trust  Dec.   194),   492. 
Gibbs  7'.   McNeeley   (107  Fed.  210,  2  Fed.  Anti-Trust  Dec.  71).  492. 
Gibson   v.   United   States    (166   U.   S.   269,   41   L.   Ed.   996,   17    Sup.   Ct. 

578),  54. 
Gile  &  Co.  V.  Sou.  Pac.  Co.  (22  L  C.  C.  298),  244. 
Gill   Engraving   Co.   v.   Doerr   (214   Fed.   Ill),   486,   489. 
Gilman  v.  Philadelphia   (3  Wall.  70  U.  S.  713,  18  L.  Ed.  96),  54. 
Girard  Point  Storage  Co.  v.  Southwark  Foundry  Co.  (105  Pa.  248),  45. 
Glade  Coal   Co.  v.  Baltimore  &  O.  R.  Co.   (10  L  C.   C.  226),   175,  339, 

346. 
Gladson   v.    Minnesota    (166   U.    S.   427,   41   L.    Ed.    1064,    17    Sup.    Ct. 

627),    21. 
Gloucester  Ferry   Co.  v.   Penn.    (114  U.   S.   196.  29   L.   Ed.   158,  5  Sup. 

Ct.    826),    53. 
Glucose,  From  Chicago   (36  L  C.  C.  379),  91. 
Goff-Kirby  Coal  Co.  v.   Bessemer  &  L.  E.  R.   Co.   (15   L   C.   C.  553), 

383. 
Goldfield  Con.  Mines  Co.  v.  Goldfield  Miners'  Union   (159  Fed.  500), 

487. 
Goodman  Mfg.   Co.  v.  P.   R.   Co.   (26   L  C.   C.  423),  206,   210. 
Goodrich   Transit   Co.   v.   Int.    Com.    Com.    (190   Fed.   943).   63.   65,   69, 

220,  226,  235,  310. 
Goshen  Rubber  Works  v.  Single  Tube  A.  &  B.  Tire  Co.  (166  Fed.  431, 

92    C.    C.   A.    183),   4,    86. 
Grain   Rates   C.   F.  A.  Territory   (28   I.   C.   C.  549),   398. 
Grain  Shippers'  Asso.  v.  111.  Cent.  R.  Co.  (8  I.  C.  C.  158),  82,  339,  383. 
Grand   Rapids    &   I.    Ry.    Co.   v.    Hunt    (38    Ind.    App.    657,    78    N.    E. 

358),    15. 


Table  of  Cases   Cited.  li 

[  References  are  to   Sections.  ] 

Grand   Rapids   &   I.   Ry.   Co.  v.  United   States   (212   Fed.   377),   371. 
Grand  Trunk  W.  Ry.  Co.  v.  R.  R.  Com.  of  Ind.  (221  U.  S.  400,  55  L. 

Ed.   786,   31   Sup.    Ct.   537),   14,   15. 
Grand  Trunk  W.  Ry.  Co.  v.  Mich.  R.  R.  Com.   (231  U.  S.  457,  58  L. 

Ed.   310,  34  Sup.   Ct.   152,   198   Fed.   1009),   14,   192. 
Grand  Trunk  W.  Ry.  Co.  v.  Operation  Car  Ferry  (34  I.  C.  C.  54),  354. 
Greater   Des    Moines   Com.   v.   Chicago    G.   W.   Ry.    Co.    (14   I.    C.    C. 

294),    348. 
Greater  Des  Moines  Com.  v.  C.  R.  I.  &  P.  R.  Co.  (17  I.  C.  C.  54),  118. 
Great    Northern   Ry.    Co.   v.   Kalispell    Lumber   Co.    (165    Fed.   25,    91 

C.    C.   A.   63),   304,  443. 
Great  Northern  Ry.  Co.  v.  Minnesota   (238  U.  S.  340,  59  L.  Ed.         , 

35    Sup.    Ct.    753),    9. 
Great  Northern  Ry.  Co.  v.  O'Conner   (232  U.  S.  508,  58  L.    Ed.  703, 

34    Sup.    Ct.    380),    158,    371. 
Great  Northern   Ry.   Co.  v.  United   States    (155   Fed.  945,   84   C.   C.  A. 

93),    371,   448. 
Great  Northern  Ry.   Co.  v.  United  States   (208  U.   S.  452.  52   L.   Ed. 

569,    28    Sup.    Ct.    313),    371,    448. 
Great  Western  R.  W.   Co.  v.   Grand  Trunk  R.  W.   Co.   (25  U.   C.   R. 

37),    352. 
Great  Western  Ry.  v.  Sutton  (38  L.  J.  Ex.  177.  L.  R.  4  H.  L.  226,  22 

L.   T.   43,    18   W.   R.   92),   133,    137,    158,   205,   345. 
Green   Bay   Business   Men's   Asso.   v.   Baltimore   &   O.   R.    Co.    (15    I. 

C.    C.    59),    339. 
Greenbaum  v.  L.  &  N.  R.   Co.   (30  I.   C.   C.  699),  383. 
Greenwall  v.  Weir  (111  N.  Y.  Sup.  235,  59  Misc.  Rep.  431,  130  N.  Y. 

App.   Div.  696,   115   N.  Y.   Sup.  311),  34,  439. 
Greer,    Mills    &    Co.    v.    Stoller    (77    Fed.    1,    1    Fed.    Anti-Trust    Dec. 

620),    489.    490. 
Griffin  Grocery  Co.  v.  Southern  Ry.  Co.   (11  I.  C.  C.  522),  346,  348. 
Gulf   &    I.    R.    Co.   V.   T    &   N.    O.    Ry.    Co.    (93   Tex.   482,   56    S.   W. 

328),    13. 
Gulf  Coast  Nav.  Co.  v.  Kansas  City  So.  Ry.  Co.  (19  I.  C.  C.  544),  195. 
Gulf,   C.   &  S.   F.   R.    Co.  V.   Dennis    (224  U.   S.   503,   56   L.    Ed.   860,   32 

Sup.    Ct.    542),    32. 
Gulf,   C.   &  S.  F.   R.   Co.  V.  Dwyer   (75  Tex.   572,   12  S.  W.   1001,  7   L. 

R.   A.   478),   3'2. 
Gulf,   C.  &  S.   F.   R.   Co.  V.   Eddins    (7  Tex.   Civ.  App.   116,  26  S.  W. 

161),    32. 
Gulf,   C.   &   S.   F.    R.   Co.  V.   Fort   Grain   Co.    (72   S.   W.   419,  73   S.   W. 

845),    335. 
Gulf.    C.   &   S.   F.    R.   Co.  V.   Hefley    (158   U.    S.   98.   39   L.   Ed.   910,    15 

Sup.    Ct.    802),    180,    204,    212. 
Gulf,   C.   &  S.   F.  R.  Co.  V.  Miami  S.  S.   Co.   (86  Fed.  407,  30   C.  C. 

A.   142,  1   Fed.  Anti-Trust  Dec.  823),  149,  347,  492. 


Lii  Table  of   Cases   Cited. 

[  References  are  to  Sections.  ] 

Gulf,  C.  &  S.  F.  R.  Co.  V.  Moore  (98  Tex.  302,  83  S.  W.  362,  4  Ann.  Cas. 

770),  383,  405. 
Gulf,   C.   &  S.   F.   R.   Co.  V.   State    (56  Tex.   Civ.   App.   353,   120   S.   W. 

1028),   14. 
Gulf,    C.    &   S.   F.   R.    Co.   V.   Texas    (204   U.    S.   403,    51    L.    Ed.    540,   27 

Sup.    Ct.    360),   41,   67,   335. 
Gump  V.  Baltimore  &  O.  R.  Co.  (14  I.  C.  C.  98),  339,  348. 
Gund  &  Co.  V.  C.  B.  &  Q.  R.  Co.  (25  I.  C.  C.  326),  346. 
Gustin   V.  Atchison,   T.   &  F.   Ry.   Co.    (8   I.    C.    C.   277),   49,   99. 
Gustin  V.  Burlington   &  M.  R.  R.  Co.   (8  I.  C.   C.  481),  348. 
Gustin  V.   111.   Cent.   R.   Co.   (7   I.   C.   C.  376),  338,   339. 
Gutierrez  v.   El  Paso  &  N.   E.  R.   Co.   (215  U.  S.  87,  54   L.   Ed.   106, 

30  Sup.   Ct.  21),  33. 

H. 

Haddock  v.  Delaware,  L.  &  W.  R.  Co.  (3  I.  C.  R.  410),  389. 
Haddock  v.   Delaware,   L.   &  W.   R.    Co.    (4   I.    C.    C.   296,  3   I.   C.   R. 

302),   416. 
Hadley-Dean   Plate   Glass   Co.  v.   Highland   Glass   Co.    (143   Fed.  242, 

74  C.   C.  A.  462,  2  Fed.  Anti-Trust  Dec.  994),   486. 
Hagan  v.  Blindell  (56  Fed.  696,  6  C.  C.  A.  86,  1  Fed.  Anti-Trust  Dec. 

182).    489. 
Hale  V.   Hatch   &  North  Coal  Co.   (204  Fed.  433,  122   C.   C.  A.  619), 

486,  492. 
Hale  V.  Henkel  (201  U.  S.  43,  50  L.  Ed.  652,  26  Sup.  Ct.  370.  2  Fed. 

Anti-Trust   Dec.   874),   486. 
Hale  V.  \ew  Jersey  Nav.  Co.  (15  Conn.  539,  39  Am.  Dec.  398),  55. 
Hale  V.   O'Connor   Coal  Sup.   Co.   (181   Fed.  267),   492. 
Hall  V.  DeCuir   (95  U.  S.  5  Otto.  485,  24  L.   Ed.  547),   3,  29. 
Halliday  Milling  Co.  v.  Louisiana  &  N.  W.   R.   Co.    (80  Ark.  536.  98 

S.  W.  374),   383. 
Hamilton  &  Brown  v.  Chattanooga,  R.  &  C.  R.  Co.   (4  I.  C.  C.  686.  3 

I.  C.  R.  482),  348. 
Hamlen  &  Sons  Co.  v.  I.  C.  R.  Co.   (212  Fed.  324),  358. 
Hammond   Packing   Co.   v.   Arkansas    (212   U.    S.   322,   53   L.    Ed.   530, 

81   Ark.    519,    26   Am.    St.    Rep.    1047,    100    S.    W.    407,    29    Sup.    Ct. 

370),    486. 
Hampton  Mfg.  R.  Co.  v.  Old  Dominion  S.  S.  Co.   (27  I.  C.   C.  666), 

207. 
Hampton  v.  St.  L.   I.  M.  &  S.  R.   Co.   (227  U.  S.  456.  57  L.  Ed.  596, 

33    Sup.    Ct.   263),   26. 
Hanley  v.   Kansas  City  S.   R.   Co.   (187  U.   S.  617,  47  L.   Ed.   333,  23 

Sup.    Ct.    214),    69,    335. 
Hannibal   Bridge  Co.  v.  United   States   (221   U.   S.   194.   55   L.   Ed.  699, 

31  Sup.    Ct.    603).    54. 

Hannibal  &  St.  J.  R.  Co.  v.  Husen  (95  U.  S.  465,  24  L.  Ed.  527),  58. 


Table  of  Cases  Cited.  UH 

[  References  are  to  Sections.  ] 

Hans  Rees'  Sons  v.  S.  R.  Co.   (30  I.  C.  C.  585),  259. 
Hardaway  v.  S.  R.  Co.   (90  S.  C.  485,  75  S.  E.  1020),  297. 
Hardenberg,  D.  &  G.  v.  Northern  Pac.  Ry.  Co.  (14  I.  C.  C.  579),  383. 
Hardwick  Farmers'  Elevator  Co.  v.  Chicago,  R.  I.  &  P.  R.  Co.   (110 

Minn.  25,   124  N.  W.   819,   19  Ann.   Cas.   1088),  4,   25. 
Hare  v.  L.  &  N.  W.  R.  W.  Co.   (2  J.  &  H.  480,  30  L.  J.  Ch.  817),  352. 
Harriman   Bros.  v.   M.   K.   &  T.  R.   Co.    (128  S.  W.  932),  439. 
Harriman  v.   Int.   Com.  Com.   (211  U.  S.  407,  53  L.  Ed.  253,  29  Sup. 

Ct.  115),  78,  219,  299,  310,  389,  390,  432,  441.  447. 
Harriman  v.  Northern  Securities  Co.  (132  Fed.  464,  2  Fed.  Anti-Trust 

Dec.   587),   489. 
Harriman  v.  Northern   Securities   Co.    (197  U.   S.  244,  49   L.   Ed.  739, 

25  Sup.  Ct.  493,  2  Fed.  Anti-Trust  Dec.  669),  489. 
Hartman  v.  John  D.  Park  Sons  (145  Fed.  358,  2  Fed.  Anti-Trust  Dec. 

999),   486. 
Hartman   Furniture   &   Carpet   Co.  v.  Wisconsin   Cent.   R.   Co.    (15   I. 

C.    C.    530),    218. 
Harvard  v.  Penn.  Co.   (4  I.  C.  C.  212,  3  I.  C.  R.  257),  111,  346. 
Harvey  v.   Louisville    &   N.    R.    Co.    (5    I.    C.    C.    153,   2    I.    C.    R   662, 

3   I.   C.   R.  793),  342,  442. 
Harwell  v.  Columbus  &  W.  R.  Co.  (1  I.  C.  C.  236,  1  I.  C.  R.  631),  348. 
Haskell  v.   Kansas  Natural  Gas  Co.   (172  Fed.  545),  7. 
Hastings  Malting  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.    (11  I.   C.   C. 

675),  339,  348,  395. 
Hatch  -J.  Reardon   (204  U.  S.  152,  51  L.  Ed.  415,  27  Sup.   Ct.  188),  57. 
Hawkins  v.  Wheeling,  etc.,  R.  Co.  (9  I.  C.   C.  212),  175. 
Hays  V.  Penn   Co.    (12  Fed.  309),  345,   346. 
Heard  v.   Georgia  R.   Co.    (1   C.   C.  428,  1  I.   C.   R.  719),  346. 
Heard  v.  Georgia  R.  Co.  (3  I.  C.  C.  Ill,  2  I.  C.  R.  508),  346. 
Heck  V.   East  Tenn.,  Va.   &   Ga.   Ry.   Co.    (1  I.   C.   C.  495,   1  I.   C.   R. 

775),  206,  335,  383,  403. 
Heileman  Brewing  Co.  v.  C.  M.  &  St.  R.  Co.  (16  I.  C.  C.  396),  348. 
Hendrick  v.  Maryland  (235  U.  S.  610,  59  L.  Ed.  — ,  32  Sup.  Ct.  140),  59. 
Hennepin  Paper  Co.  v.  Northern  Pac.  R.  Co.  (12  I.  C.  C.  535),  177,383. 
Hennington   v.    Georgia    (163   U.    S.    299,   41    L.    Ed.    166,    16    Sup.    Ct. 

1086),  17,  18. 
Herndon  v.   C.   R.   I.   &   P.   R.   Co.    (218   U.   S.   135,   54   L.   Ed.   970,   30 

Sup.  Ct.  633),  21. 
Hewins  v.  N.  Y.,  N.  H.  &  H.  R.  Co.  (10  I.  C.  C.  221),  181,  346. 
Hewitt  &  Conner  v.  C.  &  N.  W.  R.  Co.  (16  I.  C.  C.  431),  348. 
Heymann  v.  So.  Ry.  Co.   (203  U.  S.  270,  51   L.   Ed.  178,  27   Sup.  Ct. 

104),   58. 
Higbee  v.  W.  U.  Tel.  Co.  (179  Mo.  App.  195,  166  S.  W.  825),  340. 
High  V.  Kirkwood  (237  U.  S.  52,  59  L.  Ed.  — ,  35  Sup.  Ct.  501),  58. 
Hill  V.  W.  S.  R.  Co.   (128  Ga.  705,  57  S.  E.  795),  43. 
Hill  &  Bro.  V.  Nashville,  C.  &  St.  L.  Ry.  Co.   (6  I.  C.  C.  343),  348. 
Hill,   (Audley),  &  Co.  v.  S.  R.  Co.   (20  I.  C.  C.  223),  105. 


Liv  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Hill   &  Morris  v.   St.   L.   S.  W.   R.    Co.    (—  Tex.   Civ.  App.  —    75   S. 

W.    874),   25. 
Hillsdale  Coal  &  Coke  Co.  v.  P.  R.  Co.  (19  I.  C.  C.  356,  23  I.  C.  C. 

186),   175,  208,   222,   266,    346,   383,   392,  394,   445. 
Hillsdale  Coal  and  Coke  Co.  v.  Penn.  R.  Co.   (23   I.  C.   C.   186),  208. 
Hillsdale  Coal  &  Coke  Co.  v.  P.  R.  Co.   (229  Pa.  61,  78  Atl.  28),  208, 

383. 
Hilton  Lumber  Co.  v.  Wilmington  &  W.  R.  Co.   (9  I.  C.  C.  17),  339, 

345,   346,   348. 
Hipolite   Egg   Co.  v.   United   States    (220   U.   S.   45,   55   L.   Ed.   364,   31 

Sup.    Ct.   364),    58,   383. 
Hitchman   Coal  &  Coke  Co.  v.  Mitchell   (202  Fed.  512),  486. 
Hocking  Valley  R.  Co.  v.  Lackawana  Coal  &  Lumber  Co.   (224  Fed. 

930,  —  C.   C.  A.  — ),   118. 
Hocking    V.    R.    Co.   v.   United    States    (210    Fed.    735,    127    C.    C.    A. 

285),    345,    358,    370,    371. 
Hoke  V.  United  States  (227  U.  S.  308,  57  L.  Ed.  523,  33  Sup.  Ct.  281. 

43  L.  R.  A.   (N.  S.)   906,  Ann.  Cas.  1912  B,  669,  Ann.  Cas.   1913E, 

905),  2,  34. 
Holbrook  v.   St.   Paul,   M.   &   M.    R.    Co.    (1   L    C.   C.   102,   1    L   C.   R. 

323),    392. 
Holdzkom  v.  Mich.  Cent.  R.  Co.   (9  L  C.  C.  42),  346,  348. 
Holmes  &  Co.  v.  Southern  Ry.  Co.  (8  L  C.  C.  561),  102,  339. 
Home  Tel.   Co.  v.   Granby   &  N.  Tel.    Co.    (114  Mo.   1111,   126  S.  W. 

773),    14,    337. 
Home  Tel.   Co.  v.   Peoples  Tel.   Co.    (125   Tenn.   270,   141   S.   W.   845), 

327. 
Home  Tel.  Co.  v.  Sarcoxie  Light  &  Tel.  Co.  (236  Mo.  114.  139  S.  W. 

108),  327. 
Honolulu   R.   T.   &   L.   Co.   v.    Hawaii    (211   U.    S.   282,   53    L.   Ed.   186, 

29  Sup.  Ct.  55),  63 
Hooker   v.    B.    &   M.    R.    Co.    (209    Mass.    598,   95    N.    E.   945,   23   Ann. 

Cas.    699),    34,    439. 
Hooker  v.   Int.   Com.   Com.    (225  U.   S.   302,   56   L.   Ed.   1099,   32   Sup. 

Ct.   769),  308,  314,  460. 
Hooker  v.  Int.  Com.  Com.   (188  Fed.  242),  308,  314. 
Hope  Cotton  Oil  Co.  v.  Texas  &  Pac.  Ry.  Co.  (10  I.  C.  C.  696),  335, 

383. 
Hope  Cotton  Oil  Co.  v.  Texas  &  Pac.  Ry.  Co.   (12  I.   C.  C.  265),  339. 
Hopkins  v.  United  States   (171  U.  S.  578,  43  L.   Ed.  290,  19  Sup.  Ct, 

40,   1   Fed.   Anti-Trust   Dec.   941),  486. 
Horton  v.  So.   Ry.   Co.   (173  Ala.  231,   55   So.   531),  9. 
House  V.   Mays   (219  U.  S.  270,  55   L.   Ed.  213,  31   Sup.   Ct.  234),  57. 
Houston  &  T.  C.  R.   Co.  v.  Dumas   (43  S.  W.  609),   180,  212. 
Houston  &  T.  C.  R.  Co.  v.  Mayes   (36  Tex.  Civ.  App.  606,  83  S.  W. 

53),  24. 


Table;  of  Cases  Cited.  iv 

[  References  are  to  Sections.  ] 

Houston   &  T.   C.   R.   Co.  v.  Mayes   (201  U.   S.   321,   50  L.   Ed.   772,  26 

Sup.   Ct.  491),  24. 
Houston,  E.  &  W.  T.  R.  Co.  v.  United  States  (234  U.  S.  342,  58  L. 

Ed.   1341,  34  Sup.   Ct.  833),  3,  9,  44,  62,  68,   140,   145,   184,  222,  259, 

336,  346.  • 

Howard  v.   111.   Cent.   R.   Co.    (207   U.   S.   463,   52   L.   Ed.   297,   28   Sup. 

Ct.   141),  22,  33,  62,  332. 
Howard  Mills   Co.  v.  Mo.  Pac.  R.  Co.   (12  I.  C.   C.  258),  91,  346. 
Howard  Supply  Co.  v.  Chesapeake  &  O.  Ry.  Co.  (162  Fed.  688),  407. 
Howell  V.  New  York,  L.  E.  &  W.  R.  Co.  (2  I.  C.  C.  272,  2  I.  C.  R. 

162),  80,  88,  90,  105,  339,  346. 
Hoxie  V.  New  York,  N.  H.  &  H.  R.  Co.   (73  Atl.  754,  82  Conn.  373), 

293. 
Hozier  v.   Caledonian   R.   Co.    (17   Sess.   Cas.  303,   1   Nev.  &  McN.   R. 

Cas.   27),  144. 
Hudson  Valley  R.  Co.  v.  B.  &  M.  R.  Co.  (45  Misc.  520,  92  N.  Y.  Sup. 

928,   106  App.  Div.  375,  94   N.   Y.   Sup.  545),   17. 
Huerfano  Coal  Co  v.  C.  &  S.  E.  R.  Co.  (28  I.  C.  C.  502),  338,  344. 
Hughes  Creek  Coal  Co.  v.  K.  &  M.  R.  Co.  (29  I.  C.  C.  671),  195,  401. 
Humbolt  S.  S.  Co.  V.  Int.  Com.  Com.  (39  Wash.  L.  Rep.  386),  335. 
Humbolt  S.  S.  Co.  V.  White  Pass  &  Y.  Route  (25  I.  C.  C.  136),  195. 
Humphries  v.  Hopkins   (81  Cal.  551,  22  Pac.  892),  42. 
Hurlburt  v.  Lake   Shore   &  M.   S.   R.  Co.   (2  I.   C.   C.  122,  2   I.   C.   R. 

81),   392,   455. 
Huse  V.  Glover  (119  U.  S.  543,  30  L.  Ed.  487,  7  Sup.   Ct.  313),  56. 
Hussey  v.  Chicago,  R.  I.  &  P.  R.  Co.   (14  I.  C.   C.  215),  416. 
Hydraulic  Press  Brick  Co.  v.  M.  &  O.  R.  Co.   (19  I.  C.  C.  530),  96. 
Hydraulic  Press  Brick   Co.  v.  St.  Louis  &  S.  F.   R.  Co.   (13  I.  C.   C. 

342),  346. 

I. 

Cent.  R.  Co.  v.  Henderson  Elevator  Co.   (138  Ky.  220,  127  S.  W. 

779),    212. 

Cent.   R.   Co.   v.   Henderson    Elevator   Co.    (226   U.   S.   441,   57    L. 

Ed.  290,  33  Sup.   Ct.   176),   204,   212,   358. 

Cent.  R.  Co.  v.  Illinois   (163  U.  S.  142,  41  L.  Ed.  107,  16  Sup.   Ct. 

1096),   21. 

Cent.  R.  Co.  v.  Int.  Com.  Com.  (206  U.  S.  441,  51  L.  Ed.  1128,  27 

Sup.    Ct.    700),    63,    90,    92,    102,    1109,    170,    197,    207.    312,    339,    346, 

395,  406,  4.86. 

Cent.  R.  Co.  v.  Int.   Com.   Com.   (173   Fed.   930),  222,  309. 

Cent.    R.    Co.    v.    Louisiana    R.    R.    Com.    (236    U.    S.    157,    59    L. 

Ed.  — ,  35  Sup.   Ct.  275),   12,   14,  41,   192. 

Cent.  R.   Co.  v.   Mississippi   R.   R.   Com.    (138   Fed.   327,  70   C.    C. 

A.   617),   9. 

Cent.   R.   Co.   v.   Mulberry   Hill   Coal    Co.    (257    III.   80,    100   N.    E. 

151),   174,   296,   405. 


i^vi  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

III.  Cent.  R.  Co.  v.  Mulberry  Hill  Coal  Co.  (23S  U.  S.  275,  59  L.  Ed. 

— ,   35   Sup.   Ct.  760),  25,    174,   175,   198,  296. 
riwaco  Ry.  &  Nav.  Co.  v.  Oregon  S.  R.  &  U.  N.  Ry.   Co.   (57  Fed. 

673,  6   C.   C.  A.  495),  346,  347. 
Impe»ial   Coal   Co.  v.  Pittsburg  &  L.  E.  R.  Co.   (2  I.  C.  C.  618,  2  I. 

C.    R.    436),    105,    348. 
Import   Rates  on   Manganese   Ore   (25   I.   C.   C.  663).   345. 
Independent  Refiners'  Asso.  v.   Penn.   R.   Co.    (6   I.   C.   C.   52,   4  I.   C. 

R.  162,  5  I.  C.  C.  415,  2  I.  C.  R.  294),  214,  345,  416. 
Independent  Refiners'  Asso.  v.  Western  N.  Y.  &  P.  R.  Co.   (5   I.  C. 

C.  415,  4  I.   C.  R.  162),  345,  352. 
Independent  Refiners'  Asso.  v.  Western  N.  Y.  &  P.  R.  Co.   (6   I.  C. 

C.    378),    335,   345,    383,    407,    408. 
Indiana  Mfg.   Co.  v.  J.   I.   Case  Threshing  Mach.   Co.    (148   Fed.   21), 

486. 
Indiana  Steel  &  Wire  Co.  v.  C.  R.  I.  &  P.  R.  Co.  (16  I.  C.  C.  155),  145, 

345. 
Indianapolis    Freight    Bureau   v.    Cleveland,    C.    C.    &   St.    L.    Ry.    Co. 

(15  I.   C.   C.  504),  118,  346. 
Industrial    Railways    Case    (29    I.    C.    C.    212,    32    I.    C.    C.    129,    34    I. 

C.   C.   596),   140,   171,   193,   232,   346. 
Ingersoll  &  Bro.  v.  McCol'l   (204  Fed.   147),  486. 

Inman  v.  St.  L.  S.  W.  R.  Co.  (14  Tex.  Civ.  App.  39,  37  S.  W.  37),  — . 
Inman,  Akers  &  Inman  v.  A.  C.  L.  R.   Co.   (32  I.  C.   C.  146),  404. 
Interior  Iowa  Cities  Case   (28  I.  C.  C.  64),  118. 
Intermountain   Rates    Cases    (234  U.   S.   476,   58   L.    Ed.   1408,   34   Sup. 

Ct.  896),  244. 
International  &  G.  N.  R.  Co.  v.  R.  R.  Com.  of  Tex.  (99  Tex.  332,  89 

S.    W.    961,    86    S.    W.    16),    13,    17. 
International   Coal   Mining  Co.  v.   Penn.   R.   Co.    (152   Fed.   551),  383. 
International  Coal  Mining  Co.  v.  Penn.  R.  Co.  (162  Fed.  996),  134. 
International   Harvester    Co.   v.   Kentucky    (147   Ky.   564,   795,   144   S. 

W.   1064.   146   S.   W.   12,    148   Ky.   572,   147    S.   W.   1199),   486. 
International   Harvester   Co.   v.    Ky.    (234   U.   S.   216,   58   L.    Ed.    1284, 

34    Sup.    Ct.    853),   486. 
International    Harvester    Co.    v.    Alissouri    (237    Mo.    369,    141    S.    W. 

672),  486. 
International   Harvester   Co.   v.    Missouri    (234   U.   S.    199,    58   L.    Ed. 

1276,    34    Sup.    Ct.    854),    486. 
International   Harvester   Co.   v.   Oliver    (192    Fed.    59),   486. 
International   Paper  Co.  v.  D.  &  H.  Co.   (33   I.  C.   C.  270),  65,  335. 
International   Text   Book    Co.   v.   Lynch    (81    Vt.    101,   60   Atl.   541),   2. 
International  Text  Book  Co.  v.  Pigg  (217  U.  S.  91.  54  L.  Ed.  678,  30 

Sup.   Ct.  481),  2. 
Interstate  Com.  Com.  v.  Ala.  Mid.  R.  Co.  (69  Fed.  227),  339,  346,  348. 
Int.   Com.   Com.  v.  Ala.  Mid.   R.   Co.   (74  Fed.  715,  21   C.   C.  A.  51,  41 

U.   S.  App.   453,   5   I.   C.   R.   685),   93,   339,   345,   346,   348. 


Table  of  Cases  Cited.  lvii 

[  References  are  to  Sections.  ] 

Int.   Com.   Com.  v,  Ala.   Mid.   R.   Co.    (168  U.   S.   144,  42   L.   Ed.  414, 

18  Sup.   Ct.  45),  93,   128,  137,   139,   153,   183,   199,  312,  339,  345,  346, 

348,   406. 
Int.   Com.   Com.  v.  Atchison,  T.   &  S.   F.   R.   Co.    (50   Fed.  295),  248, 

406. 
Int.   Com.   Com.  v.   Atchison,  T.   &  S.   F.    R.   Co.    (149   U.   S.   264,  37 

L.   Ed.  727,   13   Sup.   Ct.  837),  388. 
Int.    Com.    Com.  v.   Atchison,   T.   &  S.   F.   R    Co.    (234   U.   S.   294,   58 

L.   Ed.   1319,   34   Sup.    Ct.   814),   193,   197. 
Int.    Com.    Com.   v.    Baird    (194   U.   S.   25,   48   L.    Ed.   860,   24   Sup.    Ct. 

563),    130,    219,    299,   310,    389,    392,   458,    469. 
Int.    Com.   Com.   v.   Baltimore   &  O.   R.   Co.    (43   Fed.   37,   3   I.   C.   R. 

192),   88,   128,   144,   339,   345,   346,   358,   442,   444. 
Int.  Com.  Com.  v.  Baltimore  &  O.  R.  Co.   (145  U.  S.  263,  36  L.  Ed. 

699,   4    I.    C.    R.    92,    12    Sup.    Ct.    844),    93,    128,    133,    135,    136,    144, 

185,   339,    345,    346,    358,   388,   442,   444. 
Int.   Com.  V.  Baltimore   &  O.  R.  Co.   (225  U.  S.  326,  57  L.   Ed.  1107, 

32    Sup.    Ct.    742),    138,   313,    345,   460. 
Int.  Com.  Com.  v.  Bellaire,  Z.  &  C.  Ry.  Co.   (77  Fed.  942),  335,  432. 
Int.   Com.   Com.   v.   Brimson    (154   U.    S.  447,   38   L.   Ed   1047,   14   Sup. 

Ct.  1125),  63,   219,  2P9,   310,   335,   389,   390. 
Int.  Com.  Com.  v.  Chesapeake  &  O.  Ry.  Co.  (128  Fed.  59),  345. 
Int.  Com.  Com.  v.  Chicago  &  A.  R.  Co.  (215  U.  S  479,  54  L.  Ed.  291, 

30   Sup   Ct.    163),   175,    198,   222,   313,    395. 
Int.  Com.  Com.  t.  Chicago,  B.  &  Q.  R.  Co.  (94  Fed.  272),  406. 
Int.  Com.  Com.  v.  Chicago,  B.  &  Q.  R.  Co.  (98  Fed.  173),  335,  337. 
Int.   Com.  Com.  v.  Chicago,  B.  &  Q.   R.  Co.   (103   Fed.  249,  43   C.   C. 

A.   209).    335,   337. 
Int.   Com.    Com.   v.    Chicago,   B.   &   Q.   R.    Co.    (186  U.   S.   320,   46   L. 

Ed.    1182,    22    Sup.    Ct.    824),    10,    80,    358,    406. 
Int.    Com.    Com.   v.   Chicago.   B.   &   Q.   R.   Co.    (218  U.   S.   113,   54   L. 

Ed.  959,   30   Sup.   Ct.   660),   226,   463. 
Int.   Com.   Com.  v.   Chicago,   G.  W.   Ry.   Co.    (141   Fed.   1003),  85.   88, 

90,    91,    128,    339,    346. 
Int.  Com.  Com.  v.  Chicago,  G.  W.  Ry.  Co.  (209  U.  S.  lOS.  52  L.   Ed. 

705,  28   Sup.   Ct.  493),  85,  93,   102,   105,   128,   339,   346,  348. 
Int.   Com.  Com.  v.  Chicago,   R.   I.   &  P.  Ry.   Co.    (218  U.   S.   88,   54  L. 

Ed.    946,    30    Sup.    Ct.    651),    107,    109,    125,    130,    207,    222,    226,    312, 

313,    463. 
Int.   Com.   Com.  v.   Cincinnati,   H.   &  D.   R.   Co.    (146   Fed.   559),   102, 

339,    345,    394,    406. 
Int.  Com.  Com.  v.  Cincinnati,  H.  &  D.  R.   Co.   (206  U.  S.  142,  51  L. 

Ed.   995,   27   Sup.   Ct.   648),   102,   339. 
Int.  Com.  Com.  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.   (56  Fed.  925), 

335,  348,  406. 
Int.  Com.  Com.  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  (64  Fed.  981,  13 

U.    S.   App.   700),   335,   389,    394,   406. 


ivViii  Table  of  Cases  Cited. 

[  References  are  to   Sections.  ] 

Int.   Com.   Com.  v.  Cincinnati,   N.  O.  &  T.   P.   Ry.   Co.   (76  Fed.  183), 

339,    352,    395. 
Int.  Com.  Com.  v.  Cincinnati,  N.  O.  &  T.   P.  Ry.   Co.   (162  U.  S.  184, 

40  L.  Ed.  935,   16  Sup.   Ct.  700),   152,   199,  235,  348. 
Int.  Com.  Com.  v.  C.  N.  O.  &  T.  P.  Ry.  Co.  (167  U.  S.  479,  42  L.  Ed. 

243,  17  Sup.   Ct.  896),  61. 
Int.  Com.  Com.  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  (167  U.  S.  479, 

42  L.   Ed.  243,   17   Sup.  896),   5,  43,   61   63,   80,   222,   339,  389,   395. 
Int.  Com.  Com.  v.  Cincinnati,  P.  &  V.  R.   Co.   (124  Fed.  624),  346. 
Int.   Com.  Com.  v.  Clyde  S.  S.   Co.   (181  U.  S.  29,  45  L.   Ed.  729,  21 

Sup.    Ct.   512),   153,   199,   345,   346,  348,   406. 
Int.  Com.  Com.  v.  D.  L.  &  W.  R.  Co.  (64  Fed.  723),  346,  386,  406. 
Int.  Com.  Com.  v.  D.  L.  &  W.  R.  Co.   (166  Fed.  499),  346. 
Int.   Com.   Com.  v.  D.   L.   &  W.  R.   Co.   (216  U.  S.  531,   54  L.   Ed.   605, 

30  Sup.   Ct.  415),   191,  312,   338,  344,   345. 

'  Int.  Com.  Com.  v.  D.  L.  &  W.  R.  Co.  (220  U.  S.  235,  55  L.  Ed.  448, 

31  Sup.   Ct.  392),  138,  159,  222,  313,  315,  344.  463. 

Int.  Com.  Com.  v.  Detroit,  G.  H.  &  M.  R.  Co.  (167  U.  S.  633,  17  Sup. 

Ct.   986,   42   L.   Ed.   306),   128,    137,    153,    199,   335,   339,   345,    348,   358, 

392. 
Int.   Com.   Com.  v.  Diffenbaugh   (222  U.   S.   42,   56   L.   Ed.  83,  32   Sup. 

Ct.  2i2),   16,   168,  197,  312,  346,  404. 
Int.  Com.  Com.  v.  East  Tenn.,  Va.  &  Ga.  Ry.  Co.  (85  Fed.  107),  339, 

346,   348,   406. 
Int.   Com.   Com.  v.   East  Tenn.,   Va.   &  Ga.   Ry.   Co.    (99   Fed.   52,   39 

C.   C.  A.  413),  346,  348. 
Int.  Com.  Com.  v.  Goodrich  Transit  Co.  (224  U.  S.  194,  56  L.  Ed.  729, 

32  Sup.  Ct.  436),  27,  63,  65,  69,  220,  226,  235,  301,  310,  313,  314,  432. 
Int.   Com.   Com.  v.   Harriman    (157   Fed.   432),   390,   432. 

Int.   Com.   Com.  v.  Humbolt  S.   S.  Co.   (224  U.  S.  474,   56  L.   Ed.  849, 

32  Sup.    Ct.   556),   68,  301,  335. 
Int.  Com.  Com.  v.  I.  C.  R.  Co.   (215  U.  S.  452,  54  L.   Ed.  280.  30  Sup. 

Ct.    155),   174,   175,    198,   222,   309,   311,   313,   346,   395,   396. 
Int.  Com.   Com.  v.   Lake  Shore  &  M.  S.   R.   Co.   (134  Fed.  942),  266, 

339,  406. 
Int.  Com.  Com.  v.  Lake  Shore  &  M.  S.  R.  Co.   (202  U.  S.  613,  50  L. 

Ed.  1171,  26  Sup.  Ct.  865),  266. 
Int.  Com.  Com.  v.  Lehigh  Valley  Ry.  Co.   (49  Fed.  177),  406. 
Int.   Com.   Com.  v.  Lehigh  Valley  Ry.   Co.   (74   Fed.  784),  339,  395. 
Int.  Com.  Com.  v.  Louisville  &  N.  R.  Co.  (73  Fed.  409),  339,  345,  346, 

392,   395,  406. 
Int.  Com.  Com.  v.  Louisville  &  N.  R.  Co.   (101  Fed.  146),  406. 
Int.   Com.    Com.   v.   Louisville   &   N.   R.   Co.    (102   Fed.   709),   346,   438, 

406. 
Int.   Com.   Com.  r.   Louisville   &   N.   R.   Co.    (118    Fed.   613),   181.   214. 

346,  406. 


Table  op  Cases  Cite:d.  lix 

[  References  are  to  Sections.  ] 

Int.   Com.  Com.  v.   Louisville   &  N.   R.   Co.   (ICO  U.   S.  273,  47   L.   Ed. 

1047,  23   Sup.    Ct.   687),  93,   128,   153,    183,   199,   346,   348. 
Int.   Com.   Com.  v.  Louisville   &  N.  R.   Co.   (227  U.  S.  88,  57  L.   Ed. 

431,  33  Sup.  Ct.  185),   63,  103,  105,  222,  254,  256,  309,  313,  315,  316 

392,   395,   396,   443,    463. 
Int.  Com.  Com.  v.  Nashville,  C.  &  St.  L.  Ry.  Co.  (120  Fed.  934),  339, 

346,   443,    463. 
Int.  Com.  Com.  v.  N.  P.  R.  Co.  (216  U.  S.  538,  54  L.  Ed.  608,  30  Sup. 

Ct.   417),    120,    195.   313,   400,   463. 
Int.    Com.    Com.   v.    Peavy    (222  U.    S.   42,   56   L.    Ed.   83,   32   Sup.    Ct. 

22),    197. 
Int.  Com.   Com.  v.  Philadelphia  &  R.  R.   Co.   (123  Fed.  969),  392. 
Int.   Com.   Com.   v.   Reichmann    (145   Fed.   235),   335. 
Int.  Com.  Co.  v.  Southern  Pac.  Co.   (74  Fed.  42),  462. 
Int.  Com.  Com.  v.  Southern  Pac.  Co.   (123  Fed.  597),  338,  352,  406. 
Int.  Com.  Com.  v.  Southern  Pac.  Co.  (132  Fed.  829),  352,  353,  358,  406. 
Int.  Com.  Com.  v.  Southern  Pac.   Co.   (137  Fed.  606),  352,  406. 
Int.  Com.  Com.  v.  Southern  Ry.  Co.   (105  Fed.  703),  348,  406. 
Int.  Com.  Com.  v.  Southern  Ry.  Co.   (117  Fed.  741),  346. 
Int.  Com.  Com.  v.  Southern  Ry.  Co.   (122  Fed.  800,  60  C.  C.  A.  540), 

346. 
Int.  Com.  Com.  v.  Stickney   (215  U.  S.  98,  54  L.   Ed.   112,  30  Sup.   Ct. 

66),    10,    312,    358. 
Int.  Com.  Com.  v.  Texas  &  Pac.  Ry.  Co.  (52  Fed.  187),  339,  345,  346, 

358. 
Int.  Com.  Com.  v.  Texas  &  Pac.  Ry.  Co.  (57  Fed.  948,  6  C.  C.  A.  653, 

20  U.  S.  App.  1,  4   I.   C.   R.  408),  339,  345,  346,  350,  358,  462. 

Int.  Com.  Com.  v.  Union  P.  R.  Co.  (222  U.  S.  541,  56  L.  Ed.  308,  32 

Sup.   Ct.   108),  309,  311,   315,  316,  463. 
Int.  Com.   Com.  v.  United  States  ex  rel.  Humbolt  S.   S.  Co.   (224  U. 

S.  474,   56  L.   Ed.   849,  32   Sup.   Ct.   556),  68,   301,  335. 
Int.  Com.  Com.  v.  Western  &  A.  R.   Co.   (88  Fed.  186),  153,  199,  345, 

346,  348. 
Int.   Com.    Com.   v.  Western   &  A.   R.   Co.    (93   Fed.   83,   35   C.    C.   A. 

217),    345,    346,    348,    389. 
Int.  Com.  Com.  v.  Western  &  A.  R.  Co.  (181  U.  S.  29,  45  L.  Ed.  729, 

21  Sup.   Ct.   512),   183,   345,   346,   389. 

Int.  Com.  Com.  v.  Western  N.  Y.  &  P.  R.  Co.  (82  Fed.  192),  406. 
Interstate  Ry.  Co.  v.  Mass.   (207  U.  S.  79,  52  L.  Ed  111,  28  Sup.  Ct. 

26),    185,    345. 
Interstate  Remedy  Co.  v.  Am.  Ex.  Co.  (16  I.   C.  C.  436),  358. 
Interstate  Stock  Yards  Co.  v.  Indianapolis  U.  Ry.  Co.   (99  Fed.  472), 

304,   335,   346. 
Investigation    &    Suspension    Docket    26    (Coal    Ra,tes)    (22    I.    C.    C. 

604),   88. 
Investigation    of   Advances   in   Rates   on    Grain    (21    I.    C.    C.   22),   88, 

91,    99. 


LX  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ]' 

Investigation   of  Alleged  Unreasonable   Rates   on   Meat   (22   I.   C.   C. 

160),    91. 
Investigation   of  Alleged  Unreasonable   Rates   on   Meat    (23    I.    C.    C. 

656),   142. 
Iowa  &  S.  W.  Ry.  Co.  V.  C.  B.  &  Q.  R.  Co.  (32  I.  C.  C.  172).  143. 
Irving  V.  Neal  (209  Fed.  471),  489. 


Jackson  v.  St.  Louis,  A.  &  T.  R.  Co.  (1  I.  C.  C.  184,  1  I.  C.  R.  599), 

392. 
Jacobson  v.  Wis.  M.  &  P.  R.  Co.  (71  Minn.  519.  74  X.  W.  893,  40  L. 

R.  A.  389,  70  Am.  St.  Rep.  358),  13,  14,  49. 
Jacoby  v.  P.  R.  Co.   (19  I  C.  C.  392),  175,  208,  408. 
James  &  Abbott  v.   Canadian  Pac.  R.  Co.   (5  I.   C.  C.  612,  4  I.  C.  R. 

274),    383. 
James   &  Mayer  Buggy  Co.  v.   Cincinnati,  N.   O.   &  T.   P.   R.   Co.    (4 

I.   C.   C.  744,  2  I.   C.  R.  625.   3   I.   C.   R.  682),  335,  348. 
Janesville  Clothing  Co.  v.  C.  &  X.  W.  R.  Co.   (26  I.  C.   C.  628),  209, 

244,   348. 
Jannen   v.    State    (42   Tex.    Civ.    App.    631.    51    S.   W.    1126,    62    S.   W. 

419),   37. 
Jayne  v.   Loder   (149   Fed.   21,   78    C.    C.   A.   653.    7   L.    R.   A.    (N.   S.) 

984),    492. 
Jerome  Hill  Cotton  Co.  v.  Missouri.  K.  &  T.  R.  Co.  (6  I.  C.  C.  601), 

49,    339,    348. 
Jewett  Bros.  &  Jewett  v.  Chicago,  M.  &  St.  P.  R.  Co.  (156  Fed.  160), 

304,    442. 
John  D.  Park  &  Sons  Co.  v.  Hartman  (153  Fed.  24.  82  C.  C.  A.  158, 

12  L.   R.  A.   (N.   S.)    1135),   486. 
Johnson  v.  Chicago  &  P.  El.  Co.  (119  U.  S.  383.  30  L.  Ed.  447,  7  Sup. 

Ct.   254),   56. 
Johnson  v.  Chicago.  St.   Paul,  etc.,  R.   Co.   (9  I.  C.   C.  221),  346,  350, 

358,    383. 
Johnson  v.  X.  Y.,  X.  H.  &  H.  R.  Co.  (Ill  Me.  263.  88  Atl.  988),  371. 
Johnson  v.  Pensacola  &  P.  R.   Co.   (16  Fla.  623).   133. 
Johnson  r.  Seaboard  A.  L.  R.  Co.   (73  S.  C.  36.  52  S.  E.  644),  9,  30. 
Johnson  z:   Southern   Puc.   Co.    (196  U.   S.   1,   49   L.   Ed.  363,  25   Sup. 

Ct.    158),   403. 
Johnson  v.   Southern   Ry.   Co.    (69   S.   C.   322,  48   S.   E.   260),   34. 
Johnson  v.  United  States   (215  Fed.  679),  2. 
Johns-Pratt  Co.  v.   Sachs   &  Co.    (176  Fed.  738).  486. 
Johnston-Larimer  Dry  Goods  Co.  v.  Atchison,  T.  &  S.  F.  R.  Co.   (6 

I.    C.    C.   568),   346.    348. 
Johnston-Larimer  Dry  Goods  Co.  v.  Atchison,  T.  &  S.  F.  R.  Co.  (12 

I.    C.    C.    47).    346.   348. 


Table;  of  Cases  Cited.  LXI 

[  References  are  to  Sections.  ] 

Johnston-Larimer    Dry    Goods    Co.   v.    Atchison.    T.    &   S.    F.    R.    Co. 

(13   I.    C.    C.    188),   416. 
Johnston-Larimer   Dry    Goods    Co.   v.   New   York    &   Tex.    S.    S.    Co. 

(13   L    C.    C.   58),   346>   348. 
Johnston-Larimer  Dry  Goods  Co.  v.  Wabash  R.  Co.  (13  L  C.  C.  51), 

346. 
Joice   &  Co.  V.   111.   Cent.  R.  Co.    (15   L   C.   C.  339),  383. 
Joint   Rates   with    Birmiiigham   S.   Ry.   Co.    (33   L   C.    C.   110),   170. 
Joint  Traffic  Asso.   Case   (171   U.   S.   505,   569,   43   L.   Ed.   359,   19   Sup. 

Ct.  35,  1  Fed.  Anti-Trust  Dec.  859),  93,  33-7,  353. 
Jones  V.  Eastern  Counties  R.  Co.  (3  C.  B.  N.  S.  718),  144. 
Jones  V.  Van   Winkle    (131   Ga.   336,   63   S.   E.   336),   489. 
Joynes  v.  P.  R.  Co.  (17  L  C.  C.  361),  208.  395. 
Jubitz  V.  Southern   Pac.   Co.   (37   L   C.   C.   44),   117,  313. 
Junod  V.  Chicago  &  N.  W.  Ry.  Co.   (47  Fed.  390),  348,  383. 
Jurisdiction   Over  Urban   Elec.   Lines   (33   L   C.   C.   536),  337. 

K. 

Kalispell  Lumber  Co.  v.  Great  N.  R.  Co.  (157  Fed.  845),  304,  307,  443. 
Kanotex  Refining  Co.  v.  A.  T.  &  S.  F.  R.  Co.   (34  L  C.  C.  371),  41, 

68,    335. 
Kansas  v.  A.  T.  &  S.  F.  R.   Co.   (37   L  C.  C.  673),  99. 
Kansas-California  Flour  Rates   (39   L  C.   C.  459,  32  L  C.  C.  602),  91. 
Kansas  City  v.  K.  C.  V.  &  T.  R.  Co.  (34  L  C.  C.  22),  337,  400. 
Kansas    City    Hay    Dealers'   Asso.    v.    Missouri    Pac.    Ry.    Co.    (14    L 

C.    C.    597),    115,    339. 
Kansas  City  S.  R.  Co.  v.  Albers  Com.  Co.  (79  Kan.  59,  99  Pac.  819), 

212. 
Kansas  City  S.  R.  Co.  v.  Albers  Com.  Co.   (333  U.  S.  573,  56  L.  Ed. 

556,   33  Sup.    Ct.   316),   304,   313,   358. 
Kansas  City  S.  R.  Co.  v.  Anderson   (333  U.  S.  835,  58  L.   Ed.  983,  34 

Sup.    Ct.   599,   104  Ark.    500,   148   S.   W.   58),   35. 
Kansas  City  S.   R.   Co.  v.  Carl   (227  U.  S.  639,  57  L.  Ed.  683,  33  Sup. 

Ct.   391),    33,   439. 
Kansas  City  S.  R.  Co.  v.  State  (37  Ok.  806.  117  Pac.  207),  30. 
Kansas   City   S.   R.    Co.  v    Tonn    (103   Ark.   20,    143    S.   W.    577),   216, 

397. 
Kansas  City  S.  R.  Co.  v.  United  States   (331  U.  S.  433,  58  L.  Ed.  296, 

34   Sup.    Ct.    125,   204    Fed.   641),   27,    63,   64,   66,   330,    336,   235,   252, 

301,    313,   314,   335. 
Kansas    City   S.    R.    Co.   v.   United    States    (304    Fed.    641),    433. 
Kansas  City  S.  W.  R.   Co.  v.  Kaw-Valley  Drainage  Dist.   (233   U.  S. 

75,  58  L.  Ed.  857,  34  Sup.  Ct.  564),  54. 
Kansas-Iowa  Brick  Rate   (38  I.  C.  C.  285),  399. 
Kansas  City  Traffic  Bureau  v.  A.  T.  &  S.  F.  R.  Co.  (15  I.  C.  C.  491), 

266. 


LXii  Table  of  Cases  Cited. 

[  References  are  to   Sections.  ] 

Kansas  City  Transp.  Co.  v.  A.  T.  &  S.  F.  R.  Co.  (16  I.  C.  C.  195,  204), 

107,  118. 
Kauffman  v.  Mo.  Pac.  Ry.  Co.   (4  I.  C.  C.  417,  3  I.  C.  R.  400),  346. 
Kauffman  Commercial  Club  v.  T.  &  N.  O.  R.  Co.   (31  I.  C.  C.  167), 

105,    183. 
Kaul  Lumber  Co.  v.  C.  of  G.  R.  Co.  (20  I.  C.  C.  450),  170,  211. 
Kellogg  Toasted  Corn  Flakes  Co.  v.  M.  C.  R.  Co.  (24  I.  C.  C.  604),  244, 

348. 
Kellogg  Toasted  Corn  Flake  Co.  v.  Buck  (208  Fed.  383),  486. 
Kemble  v.  Boston  &  A.  R.  Co.  (8  I.  C.  C.  110),  335,  345,  348,  358. 
Kendall  v.  United   States   (12   Pet.   37   U.   S.   584.  9   L.   Ed.   1181),  301. 
Kennebec  Water  Co.  v.  Waterville   (97  Me.  185,  54  Atl.  6),  84. 
Kentucky   &  Indiana  Bridge  Co.  v.  Louisville  &  X.   R.  Co.    (37   Fed. 

567,  2  L.  R.  A.  289,  2   I.   C.  R.   351),   65,   149,  294,  335,   337,  345,  347, 

389,   395,    397,    406. 
Kentucky   &   Indiana   Bridge   Co.   v.   Louisville   &   N.   R.   Co.    (2   I.   C. 

C.    162.    2    I.    C.    R.    102),    335,    337,    347. 
Keokuk  Packet  Co.  v.  Keokuk   (95  U.   S.  80,  24   L.   Ed.  377),  56. 
Kiel  Woodenware  Co.  v.  C.  M.  &  St.  P.  R.  Co.  (18  I.  C.  C.  242),  358. 
Kile   &  Morgan  v.  Deepwater   Ry.   Co.    (15   I.   C.   C.   235),  218,  408. 
Kindel  v.  Adams  Ex.  Co.  (13  I.  C.  C.  475),  83,  90,  111,  339,  346. 
Kindel  v.  Atchison,  T.  &  S.  F.  R.  Co.   (8  I.  C.  C.  008),  346,  348. 
Kindel  v.  Atchison,  T.  &  S.  F.  Ry.  Co.   (9   I.   C.   C.  606),  83,  346,  348. 
Kindel  V.  New  York,  N.  H.  &  H.  R.  Co.  (15  I.  C.  C.  555),  117. 
King  V.   New  York,   N.   H.   &  H.   R.   Co.    (4  I.   C.   C.  251,   3   I.   C.   R. 

272),  348. 
Kinnavey  v.  Terminal   R.  Asso.   of  St.   Louis    (81   Fed.   802),   339,  345, 

358,   383. 
Kinsley  v.  Buffalo,  N.  Y.  &  P.  R.   Co.   (37  Fed.  181),  345,  346. 
Kirby  v.  C.  &  A.  R.  Co.  (241  111.  418,  90  N.  E.  252),  346. 
Kirkpatrick  v.  State   (138  Ga.  794,  76  S.  E.  53),  58. 
Kiser  v.   Cent,  of  Ga.  Ry.   Co.   (158   Fed.  193),  304,  395,  442. 
Knott  V.   C.   B.   &  Q.   R.   Co.   (230  U.  S.  474,   57  L.   Ed.    1571,   33   Sup. 

Ct.  975),  45,  84. 
Knoxville   v.    Knoxville   Water    Co.    (212   U.    S     1,    53    L.    Ed.    371,   29 

Sup.    Ct.    148),    45,   47,    50,    82,    85. 
Knoxville  Water   Co.  v.   Knoxville    (189   U.   S.   434,   47   L.   Ed.   887,   23 

Sup.    Ct.   531),   45. 
Knudsen-Ferguson  Fruit  Co.  v.  Chicago,  St.  P.  M.  &  O.  R.  Co.   (149 

Fed.   973,    79    C.    C.   A.    483),    80,   205,    215,   383. 
Knudsen-Ferguson  Fruit  Co.  v.  Chicago,  St.  P.  M.  &  O.  R.  Co.  (204 

U.  S.  670,  51  L.  Ed.  672,  27  Sup.  Ct.  786),  205,  383. 
Knudson-Ferguson  Fruit  Co.  v.  Mich.  Cent.  R.  Co.   (148  Fed.  968,  79 

C.    C.   A.   483),   358,   383. 
Koch    Secret    Service   v.    Louisville    &    N.    R.    Co.    (13    I.    C.    C.    523), 

346,   383. 
Koehler,    Ex   parte    (30    Fed.    867),   335,    340. 


TablK  of  Cases  Cited.  Lxiii 

[  References  are  to   Sections.  ] 

Koehler,    Ex   parte    (31   Fed.   315,   12   Sawy.   446),   346,   348. 
Kohl  V.  United  States   (91  U.  S.  367,  23  L.   Ed.  449),  7. 
Kyle  V.  C.  B.  &  Q.  R.  Co.  (84  Neb.  621,  122  N.  W.  37),  20. 


La  Crosse  Mfrs.  &  Jobbers  Union  v.  Chicago,  M.  &  St.  P.  R.  Co.  (11 

I.    C.    C.   629.  2   I.   C.   R.   9),    106,  339. 
LaFarier  v.  G.  T.  R.  Co.   (84  Me.  284,  24  Atl.  848),  37. 
La  Grange  Chamber  of  Commerce  v.  A.  &  W.  P.  R.  Co.  (28  I.  C.  C. 

178),   108. 
Laird  v.  B.  &  O.  R.  Co.  (121  Md.  193,  88  Atl.  348),  51. 
Lake  Cargo  Coal  Rate  Case   (22  L  C.   C.  604),  99. 
Lake  E.  &  W.  R.  Co.  v.  Cluggish  (143  Ind.  347,  42  N.  E.  743),  54. 
Lake  E.  &  W.  R.  Co.  v.  Smith  (61  Fed.  885),  54. 
Lake  Line  Applications  Panama  Canal  Act   (33   I.   C.   C.  699),  354. 
Lake  Shore  &  M.  S.  R.   Co.  v.   Cincinnati,  S.  &  C.   R.   Co.   (30  Ohio 

St.   604),   45. 
Lake  Shore  &  M.  S.  R.  Co.  r.  Ohio   (165  U.  S.  305,  41  L.  Ed.  747,  17 

Sup.  Ct.  357),  53. 
Lake  Shore   &  Mich.   So.   R.  v.   Ohio    (173  U.   S.  285,  43  L.   Ed.  702, 

19  Sup.  Ct.  465),  21. 
Lake  Shore  &  Mich.  So.  R.  Co.  v.   Smith    (173  U.   S.  684,  43  L.   Ed. 

858,  19  Sup.   Ct.  565),  38,  442. 
Lake  Shore  &  Mich.   So.  R.   Co.  v.   Smith    (114  Mich.  460,  72  N.  W. 

328).    33. 
Lamb,  McGregor  &  Co.  v.  C.  &  N.  W.  R.  Co.  (22  L  C.  C.  346),  213. 
Langdon  v.  Penn.  R.  Co.   (194  Fed.  486),  140. 
Laning-Harris    Coal   &   Grain   Co.  v.   Mo.   Pac.   Ry.   Co.    (13   L   C.    C. 

154),    117,   339,   3§3. 
Laning-Harris   Coal  &  Grain  Co.  v.   St.  Louis  &  S.  F.   R.   Co.    (15   L 

C.  C.  37),  205,  207,  383. 
Larabee  Flour  Mills  Co.  v.  Mo.  Pac.  Ry.  Co.   (74  Kans.  808,  88  Pac. 

72),  9,  296. 
Larrison  v.  Chicago,  etc.,  R.  Co.   (1  L  C.   C.  147,  1  L  C.  R.  369,  345, 

368,    444. 
Larsen   Canning  Co.    (Wm.)   v.   Chicago   &  N.  W.   Ry.   Co.    (13   L    C. 

C.  286),  383. 
Larson  Lumber  Co.  v.  G.  N.  R.   Co.    (21  L  C.   C.  474),  358. 
Larus  &  Bro.  Co.  v.  American  Tob.   Co.   (163  Fed.  712),  486. 
La  Salle,  etc.,  R.  Co.  v.  Chicago  &  N.  W.  Ry.  Co.   (13  L  C.  C.  610), 

206,    358,    383,    392. 
Lathrop   Lumber  Co.  v.  A.   G.   S.   R.   Co.   (27   L   C.   C.  250),  69,  210. 
Latta  V.   C,   St.   P.,   M.   &  O.   R.   Co.   (172   Fed.  850,  97   C.   C.  A.   198), 

439. 
Lawlor  V.   Loewe    (209   Fed.   721,   126    C.    C.   A.   445),   486,  492. 


Lxiv  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Lawlor   V.    Loewe    (236    U.    S.    522,    59    L.    Ed.   — ,    35    Sup.    Ct.    170), 

486,  492. 
Leech  v.  Louisiana  (214  U.  S.  175.  29  S.  Ct.  552,  53  L.  Ed.  956),  56. 
Lehigh  V.  R.   Co.  v.  Am.   Hay   Co.   (219   Fed.   539,  —  C.   C.  A.  — ), 

208,  383. 
Lehigh  V.  R.   Co.  v.   Clark   (207   Fed.  717,   125   C   C.  A.  235),  206,  208, 

251,   317,   383,   394,    407. 
Lehigh  V.  R.  Co.  v.  Meeker   (211  Fed.  785),  317,  383,  394,  407,  408. 
Lehigh  V.   R.   Co.  v.   Penn.    (145   U.   S.   192,   36   L.   Ed.   672,   4   L    C.   R. 

87,    12    Sup.    Ct.    806),   69,    335. 
Lehigh  V.   R.   Co.  v.   Rainey   (112  Fed.  487),  345,  346,  383. 
Lehigh  V.  R.  Co.  v.  United  States   (187  Fed.  1006,  109  C.  C.  A.  211), 

481. 
Lehigh  V.  R.  Co.  v.  United  States  (188  Fed.  879),  25,  138,  186,  371. 
Lehmann,  Higginson  &  Co.  v.  Southern  Pac.  Co.   (4  L  C.  C.  1,  3   L 

C.    R.    80),   339,    358,    361. 
Lehmann,  Higginson  &  Co.  v.  Tex.  &  Pac.  Ry.  Co.  (5  L  C.  C.  44,  3 

L    C.    R.    706),   348.   350,    356,    358. 
Lehmann-Higginson   Gro.   Co.  v.  Atchison,  T.   &  S.  F.   R.  Co.    (10  L 

C.    C.  460),   346,  348. 
Leisy  V.  Hardin   (135  U.   S.   100,   34   L.   Ed.   128,   10   Sup.   Ct.   681),   58. 
Lennon,  Ex  parte  (64  Fed.  320,  22  U.  S.  App.  561),  347. 
Lennon,   Ex   parte    (166  U.   S.   548,   41   L.   Ed.   1110,   17   Sup.   Ct.   658), 

347. 
Leonard  v.  Chicago,  M.  &  St.  P.  Ry.   Co.   (12  L  C.  C.  492),  383. 
Leonard  v.  Kansas  City  S.   R.   Co.   (13  L   C.   C.  573).  335. 
Leovy  V.  United  States  (92  Fed.  344,  34  C.  C.  A.  392.  177  U.  S.  621, 

44  L.  Ed.  914,  20  Sup.   Ct.  797).  53. 
Lexington  Gro.  Co.  v.  So.  Ry.  Co.   (136  N.  C.  396,  48  S.  E.  801),  25. 
Lighterage  &  Storage  Regulations  at  New  York  (35  L  C.  C.  47).  140. 
Lilly  Co.  V.  N.  P.  R.  Co.  (64  Wash.  689,  117  Pad.  401),  297. 
Lincoln  Board  of  Trade  v.  B.  &  M.  R.  R.  Co.  (2  I.  C.  C.  147,  2  L  C. 

R.  95),  346. 
Lincoln  Creamery  Co.  v.  Union  Pac.  R.  Co.  (5  L  C.  C.  156,  3  L  C.  R. 

794),   110,   339. 
Lindsay  Bros.  v.  Grand  Rapids  &  Ind.  Ry.  Co.  (15  L  C.  C.  182),  339. 
Lippman  &  Co.  v.  111.  Cent.  R.  Co.   (2  f.  C.  C.  584,  2  L   C.  R.  414), 

105,   339,   345. 
Little  Rock  &  M.  R.  Co.  v.  East  Tenn.,  Va.  &  Ga.  Ry.  Co.   (3  L  C. 

C.    1,    2    L    C.    R.    454),    338. 
Little  Rock  &  M.  R.  Co.  v.  East  Tenn..  Va.  &  Ga.  Ry.  Co.   (47  Fed. 

771).  338,   346,  347,   389. 
Little  Rock  &  M.  R.  Co.  v.  East  Tenn.,  Va.  &  Ga.  Ry.   Co.   (159  U. 

S.    698.    40    L.    Ed.    311,    16    Sup.    Ct.    189),    346,    347. 
Little  Rock,  etc.,  R.  Co.  v.  St.  Louis,  etc.,  R.  Co.   (41  Fed.  559),  347, 

389,    397. 


Table  ot'  Cases  Cited.  i,xv 

[  References  are  to   Sections.  ] 

Little  Rock  &  M.  R.   Co.  v.  St.  Louis,  L  M.  &  S.  Ry.  Co.   (59  Fed. 

400),   149,   346,   347. 
Little  Rock  &  M.  R.   Co.  v.  St.   Louis,   L   M.   &  S.  Ry.   Co.   (63  Fed. 

775,  11   C.  C.  A.  4]7,  26  L.  R.  A.  192),  149,  189,  346,  347. 
Little  Rock  Chamber  of  Commerce  v.   C.  M.  &  St.  R.  Co.   (26  L  C. 

C.  341),  99. 
Live   Stock   Rates   from   Colorado    (35   L   C.    C.   682),   259,   398. 
Loch-Lynn  Construction  Co.  v.  B.  &  O.  R.  Co.  (17  L  C.  C.  396),  346. 
Locke's  Appeal  (72  Pa.  St.  491),  54. 
Loder  V.  Jayne   (142  Fed.  1010,  2   Fed.  Anti-Trust  Dec.  563,   142  Fed. 

216,  2   Fed.   Anti-Trust   Dec.   854),   486. 
Loeb  V.  Eastman  Kodak  Co.  (183  Fed.  704,  106  C.  C.  A.  142),  492. 
Loewe  V.  Lawlor  (130  T?ed.  633,  2  Fed.  Anti-Trust  Dec.  563,  142  Fed. 

216,  2  Fed.  Anti-Trust  Dec.  854),  486. 
Loewe  V.  Lawlor   (148  Fed.  924),  486. 
Loewe  V.  Lawlor   (209  Fed.  721),  486,  492. 
Loewe  V.  Lawlor   (208  U.  S.  274,  52  L.  Ed.  488,  28  Sup.   Ct.  301),  486, 

492. 
Loewe  V.  Lawlor   (223  U.  S.  729,  56  L.  Ed.  633,  32  Sup.   Ct.  527),  492. 
Loewe    V.    Lawlor    (235    U.    S.    522,    59    L.    Ed.   — ,    25    Sup.    Ct.    170), 

486,    492. 
Loftus  V.    Pullman   Co.    (18   L   C.   C.   135),   88,   124. 
Loftus  V.  Pullman  Co.   (19  L  C.  C.   102),  50. 
Logan  et  al.  Com.  of  Northwestern  Grain  Asso.  v.  Chicago  &  N.  W. 

R.  Co.   (2  L  C.  C.  604,  2  L  C.  R.  431),   102.  339,  346. 
Logan   Coal    Co.   v.    Penn.    R.    Co.    (154   Fed.    497),    175,   395. 
Long  V.   So.   Ex.   Co.    (201   Fed.   441),   304.  443. 

Lord  V.   Goodall,  N.   &  P.   S.   Co.   (102  U.   S.  541,  26  L.   Ed.  224),  335. 
Los  Angeles  Switching  Case   (234  U.   S.  294,   58   L.   Ed.   1319,   34   Sup. 

Ct.   814),   143. 
Lotsfreich  v.  C.  R.  &  B.  Co.   (73  Ala.  306),  14. 

Loud  ^.  South  Caro.  R.  Co.  (5  L  C.  C.  529,  4  L  C.  R.  205),  88,  339,  383. 
Louisiana   &  P.  R.   Co.  v.  United   States   (209   Fed.   244),   140. 
Louisiana   R.    &   N.    Co.   v.   R.    R.    Com.   of  La.    (121    La.   849,   49   So. 

884),    9. 
Louisiana  v.  Texas   (176  U.  S.  1,  44  L.  Ed.  347,  20  Sup.  Ct.  251),  58. 
Louisiana  State  Rice  Milling  Co.  v.  M.  L.   &  T.  R.   Co.   (34  I.  C.   C. 

511),   440. 
Louisville  v.  Cumberland  Tel.  Co.   (225  U.   S.  430,  56  L.   Ed.  1151,  32 

Sup.  Ct.  741),  47,  50. 
Louisville   &  N.  R.   Co.  v.  Alabama   (208   Fed.  35),   60. 
Louisville   &  N.   R.   Co.  v.   Behlmer   (169  U.   S.   644,  42   L.   Ed.   889,    18 

Sup.    Ct.    502),    93,    153,    199,    335,    406. 
Louisville  &  N.   R.   Co.  v.   Behlmer   (175  U.   S.  648,  44  L.   Ed.   309,   20 

Sup.  Ct.  209),  92,  109,  128,  199,  312,  335,  348,  406. 
Louisville  N.  &  R.  Co.  v.  Bitterman  (144  Fed.  34,  75  C.  C.  A.  192),  37. 


Lxvi  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Louisville   &  N.  R.   Co.  v.   Central   Stock  Yards   Co.    (212  U.   S.   132, 

53  L.  Ed.  441,  29  Sup.  Ct.  246,  133  Ky.  148,  97  S.  W.  778),  13,  14. 
Louisville   &  N.   R.   Co.  v.    Cook   Brewing   Co.    (223  U.   S.   70,   56   L. 

Ed.  355.  32   Sup.   Ct.   189,   172   Fed.   117,  96   C.   C.   A.  322,  40   L.   R. 

A.    (N.  S.),  798),  58,  296. 
Louisville    &    N.    R.    Co.   v.    Dickerson    (191    Fed.    705.    ]12    C.    C.    A. 

295),  218. 
Louisville    &   N.   R.   Co.  v.    Eubank    (184  U.   S.   27,   46   L.    Ed.   416,   22 

Sup.   Ct.   277),   44,   52,   259. 
Louisville  &  N.  R.  Co.  v.  Finn  (235  U.  S.  601,  59  L.  Ed.  — ,  35  Sup. 

Ct.    147),   48,    101,    103. 
Louisville   &  N.   R.   Co.  v.   Garrett   (231  U.   S.  298,   58  L.   Ed.   229,   34 

Sup.    Ct.   48),   45,   47,   52,   84,   320,   453. 
Louisville   &  N.   R.   Co.  v.   Georgia   (140  Ga.  817,  80  S.   E.  327.   Ann. 

Cas.   1915A,   1018,  —  L.   R.  A.    (N.   S.)   — ),  38. 
Louisville   &  N.   R.   Co.  v.   Higdon    (234   U.   S.   592,   58   L.   Ed.   1484.   34 

Sup.    Ct.   948).    344. 
Louisville  &  N.  R.  Co.  v.  Hughes  (201  Fed.  727).  9. 
Louisville  &  N.  R.  Co.  v.  Int.  Com.  Com.   (108  Fed.  988,  46  C.  C.  A. 

685),  511. 
Louisville   &   N.   R.    Co.   v.   Int.    Com.    Com.    (184   Fed.    118),   63,    105, 

254,   392. 
Louisville  &  N.  R.  Co.  v.  Int.  Com.  Com.  (195  Fed.  541),  63,  105,  222, 

254,    392,    395. 
Louisville    &   N.    R.    Co.   v.   Kentucky    (21    Ky.    Law   Rep.   232,   51    S. 

W.  164,  1012,  106  Ky.  633,  90  Am.  St.  Rep.  236),  52. 
Louisville   &   N.    R.   Co.   v.   Kentucky   (161   U.   S.   677,   40   L.    Ed.   849, 

16   Sup.   Ct.   714),    11. 
Louisville    &   N.   R.    Co.   v.    Kentucky    (183   U.    S.   503,   46   L.    Ed.   298, 

22   Sup.    Ct.   95),   52. 
Louisville   &   N.   R.   Co.  v.   Melton    (218  U.   S.   36,  54   L.   Ed.   921,   30 

Sup.    Ct.   676),   33. 
Louisville  &  N.  R.  Co.  7'.  Mottley   (211  U.  S.   149,  53  L.   Ed.   126,  29 

Sup.    Ct.   42),   39.    342. 
Louisville   &  N.   R.   Co.  v.   Mottley   (219  U.   S.  467,   55   L.   Ed.   297.  31 

Sup.    Ct.    265,    34    L.    R.    A.    (N.    S.),    671),    38,    176,    182,    186,    303, 

342,   358. 
Louisville  &  N.  R.  Co.  v.  R.  R.  Com.  of  Ala.   (208  Fed.  35),  320. 
Louisville  &  N.  R.  Co.  ••.  Scott  (219  U.  S.  209.  55  L.  Ed.  183,  31  Sup. 

Ct.   171),  439. 
Louisville  &  N.  R.  Co.  v.  United  States  (197  Fed.  58),  166. 
Louisville   &  N.   R.   Co.   v.   United   States    (207   Fed.   591),   222. 
Louisville   &  N.  R.   Co.  v.  U.  S.   (225   Fed.  571).  348,   349. 
Louisville  &  N.  R.   Co.  v.  United  States   (238  U.  S.  1,  59  L.   Ed.  — , 

35   Sup.   Ct.  696),   309,  320,  392,  395,  465. 
Louisville  &  N.   R.   Co.  v.  West  Coast  Naval  Stores   Co.   (198  U.  S. 

483,  49  L.  Ed.  1135,  25  Sup.  Ct.  745).  149,  327. 


Table  of  Cases  Cited.  lxvii 

[  References  are  to  Sections.  ] 

Louisville  &  N.  R.  Co.  v.  Western  Un.  Tel.   Co.   (207  Fed.  1,  124  C. 

C.   A.    573),   7. 
Louisville  Board  of  Trade  v.  I.  C.  &  S.  T.  Co.   (27  L  C.  C.  499,  34  L 

C.    C.   640),   195,   338,   381,   397. 
Louisville,   N.   O.   &  T.   Ry.    Co.   v.   Mississippi    (66   Miss.   662),   5   L. 

R.  A.  132,  6  So.  203,  2  L  C.  A.  615,  14  Am.  St.  Rep.  509),  29. 
Louisville,   N.  O.   &  T.   Ry.   Co.  v.   Mississippi    (133  U.   S.  587,   33   L. 

Ed.   784,   10  Sup.   Ct.   348,   2   L    C.   R.  801),  29. 
Loup  Creek   Colliery  Co.  v.  Virginian  Ry.   Co.   (12  L  C.  C.  471),  120, 

338,  339. 
Love  V.  A.  T.  &  S.  F.  R.  Co.   (185  Fed.  321,   107   C.  C.  A.  403,  220  U 

S.   618),   49,   50. 
Lovelace  Flour  Mills  Co.  v.  Mo.  Pac.  Ry.  Co.   (74  Kan.  808,  88  Pac. 

72),  296. 
Low   Wah    Suey   v.    Backus    (225   U.    S.   460,   56    L.    Ed.    1165,   32   Sup. 

Ct.  734),  316,  396. 
Lowe  V.  S.  A.  L.  R.  Co.  (63  S.  C.  248,  41  S.  E.  297,  90  Am.  St.  678),  17. 
Lowenstein  v.  Evans   (69  Fed.  908,   1   Fed.  Anti-Trust  Dec.  598),  486. 
Lowry   V.   Tile,    Mantel    &    Grate   Asso.    (98    Fed.    817,    1    Fed.    Anti- 
Trust   Dec.   995).   486. 
Lowry  V.  Tile,  Mantel  &  Grate  Asso.  (106  Fed.  38,  2  Fed.  Anti-Trust 

Dec.   53),  486,  492. 
Lull  Carriage  Co.  v.  K.  &  S.  Ry.  Co.  (19  L  C.  C.  15),  117. 
Luni   V.    G.    N.    R.    Co.    (21    L    C.    C.    558),   254,    255,    393. 
Lumber  Rates  from  North   Pacific   Coast   (30  L  C.  C.  Ill),   121,  401. 
Lumber   Rates   Oregon   &  Washington   to    Eastern    Points    (29    L    C. 

C.   609),   375,   401. 
Lumber  Rates  from  Texas   (28   L   C.   C.  471),  400. 
Lundquist  v.  Grand  T.  W.  Ry.  Co.   (121  Fed.  915),  345. 
Lykes  S.   S.   Co.  v.   Commercial  Union    (13   L   C.   C.   310),   335. 
Lykins  v.  C.  &  O.  R.  Co.   (209  Fed.  573,  126  C.  C.  A.  395),  453. 
Lyne  v.  Delaware,  L.  &  W.  R.  Co.   (170  Fed.  847),  383,  408. 

M. 

Mac  Loon  v.  Boston  &  M.  R.  Co.  (9  L  C.  C.  642),  181,  339,  345,  ■346. 
MacLoon  v.  Chicago  &  N.  W.  R.  Co.  (5  L  C.  C.  84,  3  L  C.  R.  711), 

206,    383,    406. 
McAlister  v.    Henkel    (201    U.    S.    90,   50    L.    Ed.    671,    26    Sup.    Ct.   385, 

2  Fed.  Anti-Trust  Dec.  919),  486. 
McArthur  Bros.  v.   E.   P.   &  S.  W.   Co.    (34  L   C.   C.   30),  383. 
McCabe  v.  A.   T.   &  S.   F.   Ry.   Co.    (235   U.   S.    151,  59   L.   Ed.  —    35 

Sup.  Ct.  69),  29. 
McCaull-Dinsmore  Co.  v.  Chicago,  G.  W.   Ry.  Co.   (14   L  C.  C.  527), 

206,    210,    383. 
AlcCaull-Dinsmore  Co.  v.  M.  P.  R.  Co.   (35  L  C.  C.  69),  383. 
McClelen  v.   Southern   Ry.   Co.    (6   L   C.   C.   588),   348. 


i^xviii  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

McClung  &  Co.  V.  S.  R.  Co.  (23  I.  C.  C.  582).  81. 

McConnell  v.  Camors-McConnell  Co.   (140  Fed.  987,  72  C.   C.  A.  681, 

2  Fed.   Anti-Trust   Dec.   825),   486. 
McConnell    v.    Camors-McConnell    Co.    (152    Fed.    321,    81    C.    C.    A. 

429),   486. 
McCormick  v.  Chicago,  B.  &  Q.  R.  Co.   (14  I.   C.   C.  611),  344. 
McCoy  V.  Cincinnati,  I.  St.  L.  &  C.  R.  Co.   (13  Fed.  3),  9. 
McCullough  z'.  Maryland  (17  U.  S.  4  Wheat  316,  4  L.   Ed.  579),  63. 
McDermott  v.  State   (143  Wis.  18.  126  N.  W.  888),  58. 
McDermott  v.  Wise.   (228  U.  S.  115,  57  L.  Ed.  754,  21  Ann.  Cas.  1315, 

33  Sup.   Ct.  431),  3,  58. 
McDonald   v.   Hovey   (110  U.   S.   619,  28   L.   Ed.  269,   4   Sup.   Ct.   142), 

144. 
McDonald  v.  Sou.   Ex.  Co.   (134  Fed.  282),  58. 
McDuffie  V.   Portland  &  R.   R.  Co.   (52  N.  H.  430,   13  Am.   Rep.  72), 

304. 
McGrew  v.  Mo.  Pac.  R.  Co.   (8  I.  C.  C.  630).  217.  346.  383. 
McGrew  v.  Missouri  Pac.  R.  Co.  (230  Mo.  496,  132  S.  W.  1076),  52. 
McLean   v.   Denver   &   R.   G.   R.   Co.    (203  U.   S.   38,   51  L.   Ed.   78,   27 

Sup.   Ct.   1).   58. 
McMorran  v.  Grand  Trunk  Ry.  Co.  (3  I.  C.  C.  252.  2  I.  C.  R.  604),  339, 

345,  346. 
McNeil,   Ex  parte   (80  U.   S.   13  Wall.  236.  20  L.   Ed.  624),  292. 
McNeill  V.  Southern  Ry.   Co.   (202  U.   S.  543,  50  L.   Ed.   1142,  26   Sup. 

Ct.    722),    12,    14. 
McRae  T.  Ry.  Co.  v.   Southern   Ry.   Co.    (12   I.   C.   C.   270),   344. 
Macon  Grocery  Co.  z\  Atlantic  C.  L.  R.  Co.  (215  U.  S.  501.  54  L.  Ed. 

300,    30    Sup.    Ct.    184),    304,   307. 
Macon  Grocery  Co.  v.  Atlantic  C.  L.  R.  Co.   (163  Fed.  738).  304,  383, 

443. 
Maier  &   Co.  v.   S.   P.   Co.   (29   I.   C.   C.   103),   348,  383. 
Maine   v.    G.   T.    R.    Co.    (142   U.    S.    217,   35    L.    Ed.   994,    12    Sup.    Ct. 

121).    59. 
Majestic  Coal  &  Coke  Co.  v.  111.  Cent.  R.  Co.  (162  Fed.  810),  445. 
Manigault  v.  Springs  (199  U.  S.  473.  50  L.  Ed.  274,  26  Sup.  Ct.  127),  53. 
Manigault  v.  Ward  &  Co.  (123  Fed.  707),  53. 
Manufacturers'   &   Jobbers'   Union   v.    Minneapolis    &   St.    L.    Ry.    Co. 

(4   I.    C.    C.   79.   3    I.    C.    R.   115).   99.    110. 
Manufacturers'   Gas   &  Oil   Co.  v.   Ind.    Natural   Gas   &   Oil   Co.    (155 

Ind.  545,  58  N.  E.  706,  53  L.  R.  A.  135).  58. 
Manufacturers'  Ry.  Co.  v.  St.  L.  I.  M.  &  S.  R.   Co.   (21  I.   C.   C.  304), 

10,    66,    404. 
Manufacturers'  Ry.  Co.  v.  St.  L.  I.  M.  &  S.  R.  Co.   (28  I.  C.  C.  93), 

193,    338.    400. 
Manufacturers'  Ry.   Co.  v.  St.  Louis   I.  M.   &  S.   R.   Co.   (32   L   C.   C. 

578),    193. 
Manufacturers'   Railway?    Case    (32    L   C.   C.   100),   171.   193. 


Table  of  Cases  Cited.  lxix 

[  References  are  to  Sections.  ] 

Marian  Coal  Co.  v.  D.  L.  &  W.  R.  Co.  (27  I.  C.  C.  441),  250,  408. 
Marten  v.  Louisville   &  N.  R.   Co.   (9  I.  C.  C.  581),  110,  346,  348. 
Martin  v.  Chicago,  B.  &  Q.  R.  Co.  (2  I.  C.  C.  25,  1  I.  C.  R.  32),  392. 
Martin  v.  Hunter  (14  U.  S.  1  Wheat.  304,  4  L.   Ed.  97),  292. 
Martin  v.  Southern  Pac.  Co.   (2  I.  C.  C.  1,  2  I    C.  R.  1),  339,  348. 
Martin  v.   West    (222  U.  'S.   191,   56   L.    Ed.    159,   32   Sup.    Ct.   42,   36   L. 

R.  A.    (N.   S.)    592),   56. 
Massee  &  Felton  Lumber  Co.  v.  So.  RJ^  Co.   (23  L  C.  C.  110),  91. 
Mathews  v.  Board  of  Comrs.  of  North  Caro.  (106  Fed.  9),  84. 
Mattingly  v.  Penn.  Co.  (3  L  C.  C.  592,  2  L  C.  R.  806),  335. 
May   V.    New    Orleans    (178    U.    S.    496,    44    L.    Ed.    1165,    20    Sup.    Ct. 

976),   58. 
Mayor  of  Boston,  Ga.  v.  Atlantic  C.  L.  R.  Co.   (24  L  C.  C.  50),  108, 

348. 
Mayor  of  Bristol  v.  Virginia  &  S.  W.  Ry.  Co.  (15  L  C.  C.  453),  339. 
Mayor  of  Douglas,  Ga.  v.  Atlantic  B.  &  A.  R.  Co.  (28  L  C.  C.  445),  108. 
Mayor  of  New  York  v.  New  Eng.  Transp.  Co.   (14  Blatch.  159,  Fed. 

Cas.  10197),  53. 
Mayor  of  New  York  z'.  Starin  (106  N.  Y.  1.  12  N.  E.  631).  53. 
Mayor,  etc.,  of  Tifton  v.  Louisville  &  N.  R.  Co.  (9  L  C.  C.  160),  339. 
Mayor  of  Vienna  v.  Ga.  S.  &  F.  R.  Co.  (28  L  C.  C.  173),  108. 
Mayor,  etc.,  of  Wichita  v.  Atchison,  T.  &  S.  F.  Ry.   Co.   (9  L   C.   C. 

534),    90,    91,    164,    339,    346,    348,    486. 
Mayor,   etc.,   of  Wichita  v.   Chicago,    R.    L    &   P.   R.   Co.    (9   L    C.   C. 

569),   346. 
Mayor,  etc.,  of  Wichita  v.  Mo.  Pac.  R.  Co.  (10  L  C.  C.  35),  346. 
Meeker  v.  Lehigh  V.  R.  Co.  (21  L  C.  C.  129,  23  L  C.  C.  480),  208. 
Meeker  v.   Lehigh   V.   R.   Co.    (162   Fed.   354),   383.   486. 
Meeker  v.  Lehigh  V.  R.  Co.  (175  Fed.  320),  394,  492. 
Meeker  v.  Lehigh  V.  R.  Co.   (183  Fed.  548,  106  C.  C.  A.  94),  492. 
Meeker  v.  Lehigh  V.  R.  Co.  (211  Fed.  785,  128  C.  C.  A.  311),  208. 
Meeker  v.   Lehigh   V.   R.   Co.    (236  U.   S.   412,   59   L.   Ed.  — ,   35   Sup. 

Ct.   328),   208,   216,   218.   317,   383,   394. 
Memphis  v.  Chicago  R.  L  &  P.  R.  Co.  (37  L  C.  C.  — ),  81. 
Memphis  Cotton  Oil  Co.  v.  1.  C.  R.  Co.  (17  L  C.  C.  313),  77,  102. 
Memphis   &  L.   R.   R.   Co.  v.   Southern   Ex.   Co.    (117   U.   S.   1,   29    L. 

Ed.   791,  6   Sup.   Ct.   542),   303,  347.   397. 
Memphis  Freight  Bureau  v.   I.  C.  R.  Co.   (37  L  C.   C.  507),  98. 
Memphis  Freight  Bureau  v.  K.  C.  S.  R.  Co.   (17  L  C.  C.  90),  207. 
Memphis  Freight  Bureau  v.  St.  L.  S.  W.  R.  Co.  (18  L  C.  C.  67).  408. 
Memphis   Freight   Bureau  v.   St.   L.    L   M.   &   S.   R.   Co.    (24   L    C.   C. 

547),    408. 
Menacho  v.  Ward   (27  Fed.  529,  23   Blatchf.  502),  77,   102,  303. 
Menefee  Lumber  Co.  v.  Tex.  &  Pac.  Ry.  Co.  (15  L  C.  C.  49),  101,  383. 
Mercantile  Trust  Co.  v.  Tex.  &  Pac.  Ry.  Co.  (216  Fed.  225),  8,  104. 
Merchants'  &  Mfrs'.  Asso.  v.  P.  R.  Co.  (23  L  C.  C.  474),  150,  347. 


ivXX  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Merchants'  &  Mfrs'.  Asso.  v.  C.  of  N.  J.  R.  Co.  (30  I.  C.  C.  396), 
400. 

Merchants'  &  Miners'  Transp.  Co.  v.  United  States  (199  Fed.  902), 
371. 

Merchants'  Coal  Co.  v.  Fairmont  Coal  Co.  (160  Fed.  769,  88  C.  C. 
A.    23),    392,    445. 

Merchants'  Coal  Co.  v.  Fairmont  Coal  Co.   (163  Fed.  1021),  445. 

Merchants'  Cotton  Compress  &  Storage  Co.  v.  111.  Cent.  R.  Co.  (17 
I.  C.  C.  98),  102. 

Merchants'  Cotton  Compress  &  Storage  Co.  v.  Ins.  Co.  of  North 
America   (151  U.  S.  368,  38  L.   Ed.  195,  14  Sup.   Ct.  367),   345. 

Merchants  Ex.  of  St.  Louis  v.  B.  &  O.  R.  Co.  (34  I.  C.  C.  341),  3,  44. 

Merchants'  Freight  Bureau  of  Little  Rock  v.  Midland  Valley,  etc., 
R.    Co.    (13    I.    C.   C.   243).   346. 

Merchants'  Freight  Bureau  of  Little  Rock  v.  M.  P.  R.  Co.  (21  I. 
C.   C.   573),  348. 

Merchants'  Traffic  Asso.  v.  New  York.  X.  H.  &  H.  R.  Co.  (13  I.  C. 
C.    225),    338. 

Merchants'  Union  of  Spokane  Falls  v.  Xo.  Pac.  R.  Co.  (5  I.  C.  C. 
478,   4    I.    C.    R.    183),    105,   335,   348,   395. 

Meridian  Fertilizer  Factory  v.  T.  &  P.  R.  Co.  (26  I.  C.  C.  351),  195, 
401. 

Mershon  v.  Cent.  R.  of  N.  J.  (10  I.  C.  C.  456),  346. 

Metcalf  V.  American  School  Fur.  Co.  (108  Fed.  909,  2  Fed.  Anti- 
Trust   Dec.   75).   492. 

Metcalf  V.  American  School  Fur.  Co.  (113  Fed.  1020.  51  C.  C.  A.  599, 
2  Fed.  Anti-Trust  Dec.   Ill),  492. 

Metcalf  V.  American  School  Fur.  Co.  (122  Fed.  115,  2  Fed.  Anti- 
Trust  Dec.   234),   606. 

Metropolis  Commercial  Club  v.  I.  C.  R.  Co.  (30  I.  C.  C.  40),  346. 

Metropolitan  -Paving  Brick  Co.  v.  A.  A.  R.  Co.  (17  I.  C.  C.  197), 
88,  442. 

Metropolitan  Trust  Co.  v.  Houston  &  T.  C.  R.  Co.  (90  Fed.  683),  84. 

Michie  v.  New  York,  N.  H.  &  H.  R.  Co.   (151  Fed.  694),  339. 

Michigan  Box  Co.  v.  Flint,  etc.,  R.  Co.  (6  I.  C.  C.  335),  346. 

Michigan  Buggy  Co.  ^•.  Grand  Rapids  &  Ind.  R.  Co.  (15  I.  C.  C. 
297),    339. 

Michigan  C.  R.  Co.  v.  C.  M.  &  L.  S.  R.  Co.  (1  111.  App.  399),  42. 

Michigan  C.  R.  Co.  v.  Mich.  R.  Com.  (236  U.  S.  615,  59  L.  Ed.  — , 
35    Sup.    Ct.    423),    12,    192. 

Michigan  Hardwood  Mfrs.  Asso.  v.  Transcontinental  Freight  Bu- 
reau   (27   I.    C.    C.   32),   250,   408. 

Midland  V.  R.  Co.  v.  State  (35  Ok.  672,  130  Pac.  803),  58. 

Miles  Medicine  Co.   (Dr.)   v.  Jaynes  Drug  Co.   (149  Fed.  838),  486. 

Miles  Medicine  Co.  (Dr.)  v,  John  D.  Park  &  Sons  Co.  (164  Fed.  803, 
90  C.  C.  A.   579).  486. 


Table  of  Cases  Cited.  lxxi 

[  References  are  to  Sections.  ] 

Miles  Medicine  Co.  v.  John  D.  Park  &  Sons  Co.  (220  U.  S.  373,  55  L. 

Ed.    502,   31    Sup.    Ct.   376),   486. 
Milburn  Wagon  Co.  v.  Lake  Shore  &  M.  S.  Ry.  Co.  (18  I.  C.  C.  144), 

117. 
Milburn  Wagon  Co.  v.  T.  St.  L.  &  M.  R.  Co.   (27  I.  C.  C.  63),  99. 
Milk  Producers'  Asso.  v.  Delaware,   etc.,   R.   Co.   (7   I.   C.   C.   92),   335, 

339,  346,  348,  392. 
Millar  V.  N.  Y.  C.  &  H.  R.  Co.  (19  I.  C.  C.  78),  105. 
Miller  v.  C.  B.  &  Q.  R.  Co.  (85  Neb.  458,  123  N.  W.  449),  439. 
Miller  v.  Mayor  of  New  York  (109  U.  S.  385,  27  L.   Ed.  971,  3  Sup. 

Ct.  228),  54. 
Miller  v.  S.  P.  Co.  (20  I.  C.  C.  129).  90. 
Mills  V.  Lehigh  V.  R.  Co.   (238  U.   S.  473,  59  L.   Ed.  — ,  35   Sup.   Ct. 

888),  206,  208,  216,  251,  317,  383. 
Milwaukee,   etc.,   Brewing   Co.  v.   Chicago,   M.   &   St.   P.   Ry.    Co.    (13 

I.    C.    C.   28),   339. 
Mines  v.  Schribner  (147  Fed.  927,  2  Fed.  Anti-Trust  Dec.  1035),  486. 
Minneapolis    &   St.   L.    R.    Co.   v.    Herrick    (127   U.    S.   210,    32   L.    Ed. 

109,    8    Sup.    Ct.    1176),    33,    332. 
Minneapolis  &  St.  L.   R.  Co.  v.  Minnesota  (186  U.  S.  257,  46  L.   Ed. 

1151,   22   Sup.    Ct.   900),   14,    17,   49,   86,   87,    124,    311,   339. 
Minneapolis  &  St.  S.  M.  R.  Co.  :■.  Railroad  Com.  of  Wis.   (136  Wis. 

146,  116  N.  W.  905),  49. 
Minneapolis  Civic  &  Com.  Asso.  v.  C.   M.  &  St.  P.  R.   Co.   (30  L  C. 

C.    663),    393. 
Minneapolis  Threshing  Mach.   Co.  v.   Chicago,   M.   &   St.   P.   Ry.   Co. 

(14    L    C.    C.    536),    383. 
Minneapolis  Traffic  Asso.  v.   C.    &  N.  W.   R.   Co.    (23   L   C.    C.  432), 

88,    123. 
Minnesota  v.  Barber  (136  U.  S.  313,  34  L.  Ed.  455,  10  Sup.  Ct.  862),  58.  ' 
Minnesota   v.    Northern    Securities    Co.    (123    Fed.    692,    2    Fed.    Anti- 
Trust   Dec.   246),  486. 
Minnesota  v.   Northern   Securities   Co.    (194  U.   S.   48,   48   L.    Ed.   870, 

24   Sup.   Ct.   598,   2   Fed.  Anti-Trust   Dec.   533),   486,   489. 
Mississippi  Railroad  Com.  v.  .111.   Cent.  R.   Co.   (203  U.  S.  335,  51  L. 

Ed.  209,  27   Sup.   Ct.  90),  9,  21. 
Missouri  &  111.  Coal  Co.  v.  I.  C.  R.  Co.  (22  I.  C.  C.  39),  151,  195. 
Missouri   &   111.   Rd.,   Tie   &   Lumber   Co.  v.   Cape,   etc.,   R.    Co.    (1   I. 

C.    C.    30,    1    C.   R.   607),   335. 
Missouri  &  Kansas  Shippers'  Asso.  v.  Atchison,  T.  &  S.   F.  Ry.   Co. 

(13    I.    C.    C.   411),   218,    383,   392. 
Missouri    &    Kansas    Shippers'   Asso.   v.    Missouri,    K.    &   T.    Ry.    Co. 

(12.1.    C.    C.    483),    348,    383,    392. 
Missouri,  K.   &  T.   R.  Co.  v.   Cade   (233  U.  S.  642,   58  L.   Ed.   1135,  34 

Sup.    Ct.    678),    35. 
Missouri,  K.  &  T.  R.  Co.  v.  Fookes   (40  S.  W.  858),  37. 


Lxxii  Table  of  Cases  Cited. 

[  References  are  to   Sections.  ] 

Missouri,  K.   &  T.  R.  Co.  v.  Haber   (169  U.  S.  613,  42  L.   Ed.  878,  18 

Sup.    Ct.   488),   58. 
Missouri,    K.    &   T.    R.    Co.   v.    Harriman    (227   U.    S.    657,    57   L.    Ed. 

690,    33    Sup.    Ct.    397),    32,    439. 
Missouri,   K.   &  T.   R.   Co.   r.   Harris    (234   U.   S.   412,   58   L.   Ed.   1377, 

34   Sup.    Ct.   790),   35. 
Missouri  K.  &  T.  Ry.  Co.  v.  Int.  Com.  Com.  (164  Fed.  645),  396. 
Missouri,  K.  &  T.  R.  Co.  i\  Love  (177  Fed.  493),  49,  84. 
Missouri,  K.  &  T.  R.  Co.  v.  McCann  (174  U.  S.  580,  43  L.  Ed.  1093, 

19    Sup.    Ct.   755),   32. 
Missouri,  K.  &  T.  R.  Co.  v.  Mahaffey  (105  Tex.  394,  150  S.  W.  881),  35. 
Missouri,   K.   &  T.   R.   Co.   v.   May    (194   U.   S.   267,  48   L.   Ed.   971,   24 

Sup.    Ct.    638).    15. 
Missouri,    K.    &   T.    R.    Co.   v.    Simonson    (64    Kan.    802,    68    Pac.    653, 

57    L.    R.    A.    765),    32. 
Missouri,    K.    &   T.    R.    Co.   v.   Trinity   Co.    Lumber   Co.    (1   Tex.    Civ. 

App.    553,    21- S.    W.    290),    178. 
Missouri,   K.   &  T.   R.   Co.   v.   United   States    (178   Fed.   15,   101   C.   C. 

A.    143),    481. 
Missouri,    K.    &   T.    R.    Co.    v.   United    States    (231   U.    S.    112,    58    L. 

Ed.    144,    34    Sup.    Ct.    26),   331. 
Missouri,  K.   &  T.   R.   Co.  v.  Withers   (16  Tex    Civ.  App.  506,  40  S. 

W.   1073),   32. 
Missouri  Pac.  R.  Co.  v.  Castle   (224  U.  S.  541,  56  L.   Ed.  875,  32  Sup. 

Ct.    606),    33. 
Missouri   Pac.   R.    Co.   v.   Harper   Bros.    (201    Fed.   671,   121    C.    C.   A. 

570),    407. 
Alissouri  Pac.  R.  Co.  v.  Kansas  ex  rel.  Taylor  (216  U.  S.  262,  54  L.  Ed. 

472,  30  Sup.  Ct.  330),  19. 
Missouri  Pac.  R.  Co.  v.  Larabee  Flour  Mills  Co.   (211  U.  S.  612,  53 

L.   Ed.   352),   29   Sup.    Ct.   214),   9,   13,   344. 
Missouri  Pac.   R.   Co.  v.  Larabee  Flour  Mills  Co.   (211  U.   S.  612,  53 

L.  Ed.  352.  29  Sup.  Ct.  214),  296. 
AIo.  Pac.  Ry.  Co.  v.  Lovelace  Flour  Mills  Co.   (211  U.  S.  612,  53  L. 

Ed.  352,  29  Sup.  Ct.  214),  296. 
Missouri  Pac.  R.  Co.  v.  Mackey  (127  U.  S.  205.  32  L.  Ed.  107,  8  Sup. 

Ct.   1161),   33,    332. 
Missouri   Pac.   R.   Co.  f.    Nebraska   ex   rel.    Board   of  Transportation 

(164  U.  S.  403,  41  L.  Ed.  489,  17  Sup.  Ct.  130).  12. 
Missouri  Pac.   R.   Co.   v.   Nebraska   (217   U.   S.   196,   54   L.   Ed.   727.   30 

Sup.   Ct.  461),   12. 
Missouri  Pac.  R.  Co.  r.  Tex.  &  Pac.  Ry.  Co.   (31  Fed.  S62).  348. 
Missouri  Pac.  R.  Co.  v.  Tucker  (230  U.  S.  340,  57  L.  Ed.  1507,  33  Sup. 

Ct.  961),  35. 
Missouri  Pac.  R.  Co.  v.  United   States   (189  U.   S.  274.  47   L.   Ed.  811, 

23    Sup.    Ct.    507),    389.    456,    459. 


Table  of  Cases  Cited.  lxxiii 

[  References  are  to  Sections.  ] 

Missouri  River  Rate  Case   (Chicago,  R.  I.  &  P.  R.  Co.  v.   Int.   Com. 

Com.)    (171    Fed.   680),   462,   464. 
Mitchell  V.  A.  T.  &  S.  F.  R.  Co.  (12  I.  C.  C.  324),  105. 
Mitchell  V.  Hitchman  Coal  &  Coke  Co.   (214  Fed.  685),  489. 
Mitchell  Coal  &  Coke  Co.  v.  Cassatt   (207  U.  S.  181,  52  L.   Ed.  160, 

28    Sup.    Ct.    108),    335. 
Mitchell  Coal  &  Coke  Co.  v.  P.   R.   Co.   (181  Fed.  403,  183   Fed.  908, 

192  Fed.  475,  112  C.  C.  A.  637),  215,  345,  383. 
Mitchell   Coal   &   Coke   Co.  v.  P.   R.   Co.    (230  U.   S.  247,   57   L.   Ed. 

1472,  33  Sup.  Ct.  916),  97,  138,  197,  215,  245,  294,  345,  383,  404,  405, 

443. 
Mobile   &  O.  R.  Co.  v.  Dismukes   (94  Ala.   131,  10  So.  289,  4  I.   C.  R. 

200),    180,   212. 
Mobile  Chamber  of  Commerce  v.  M.  &  O.  R.   Co.   (23   I.  C.  C.  417), 

139,  400. 
Mobile  Chamber  of  Commerce  v.  M.  &  O.  R.  Co.  (32  I.  C.  C.  272),  400. 
Mobile  County  v.  Kimball   (102  U.  S.  691,  26  L.  Ed.  238),  3. 
Moers  v.  City  of  Reading  (21  Pa.  St.   188),   54. 
Moise  Bros.  Co.  v.  C.  R.  I.  &  P.  R.  Co.  (16  I.  C.  C.  550),  348. 
Molasses  Rates  to  Knoxville  (30  I.  C.  C.  613),  88. 
Momsen   &  Co.  v.   Gila  Valley,   etc.,   Ry.   Co.    (14   I.   C.   C.   614),  206, 

210,    383. 
Monarch  Tobacco  Works  v.  American  Tob.  Co.   (165  Fed.  774),  492. 
Mondou  V.   N.  Y.   N.  H.   &  H.   R.   Co.    (Employers'   Liability   Cases) 

(223  U.  S.  1,  56  L.   Ed.  327,  32  Sup.   Ct.   169,   38   L.  R.  A.   (N.   S.) 

44),  3,  6,  33,  58,  293,  332. 
Monongahela  Bridge  Co.  v.  United  States   (216  U.  S.  117,  54  L.   Ed. 

435,  30   Sup.   Ct.  356),  54. 
Montague   v.   Lowry    (193   U.   S.   38,   48   L.    Ed.    608,   24    Sup.    Ct.    307, 

2   Fed.   Anti-Trust   Dec.   327),   486,   492. 
Montague  v.  Lowry  (115  Fed.  27,  52  C.  C.  A.  621,  2  Fed.  Anti-Trust 

Dec.   112),  486,  494. 
Montana  Cent.  R.  Co.  v.  United  States  (164  Fed.  400,  90  C.  C.  A.  388), 

481. 
Montana  Free  Pass  Situation  (29  L  C.  C.  411),  342. 
Montrose   Pickle  Co.  v.   Dodson    (76  Iowa   172),  40   N.  W.  705,  2   L. 

R.  A.  417,  14  Am.  St.  Rep.  213),  42. 
Moore    v.    United    States    (85    Fed.    465),    29    C.    C.    A.    269),    1    Fed. 

Anti-Trust    Dec.    815),    488. 
Morgan  v.  Missouri,  K.  &  T.  R.  Co.   (12  L  C.  C.  525),  335,  361,  383. 
Morgan    Grain    Co.    (A.    P.)    v.   Atlantic    C.    L.    R.    Co.    (19    I.    C.    C. 

460),    7. 
Morgans  R.  &  S.  Co.  v.  R.  R.  Com.  of  La.  (109  La.  247,  33  So.  214),  49. 
Morgans  S.  S.  Co.  v.  Louisiana  (118  U.  S.  455,  30  L.  Ed.  237,  6  Sup. 

Ct.   1114),   58. 
Morrell  v.  Union  Pac.  R.  Co.  (6  I.  C.  C.  121,  4  I.  C.  R.  469),  339. 


Lxxiv  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Morrisdale  Coal  &  Coke  Co.  v.  Penn.  R.  Co.   (376  Fed.  748,  183  Fed. 

929,    106    C.    C.    A.   269),    208,    346,    443. 
Morrisdale  Coal  &  Coke  Co.  v.  P.  R.  Co.   (230  U.  S.  304,  57  L.   Ed. 

1474,  33  Sup.   Ct.  938),  174,  198,  208,  218,  346,  443. 
Morris  Draying  Co.  v.  Greenville  &  H.  R.  Co.   (62  X.  J.  Eq.  768,  48 

Atl.    568,    59    N.   J.    Eq.    372,   46   Atl.    638),    13. 
Morris  Iron  Co.  v.  B.  &  O.  R.  R.  Co.  (26  I.  C.  C.  240),  191,  192,  347. 
Morris-Scarboro  Moffitt  Co.  z:  So.  Ex.  Co.   (146  N.  C.  167,  59  S.   E. 

667),  9,   110. 
Morse  Produce  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (15  I.  C.  C.  334), 

383. 
Moseley  v.  United  States  (35  Ct.  Claims  355),  418. 
Moses  Taylor  (The)    (71  U.  S.  4  Wall  411,  18  L.  Ed.  397),  292. 
Moss  V.  Bettis  (4  Hisk.   (Tenn.)   661,  13  Am.  St.  Rep.  1).  54. 
Motion   Picture   Patent   Co.   v.   Eclair   Film   Co.    (208    Fed.   416),   486, 

492. 
Motion  Picture  Patent  Co.  v.  Ullman   (186  Fed.  174).  486. 
Mottley  V.  Louisville  &  N.  R.  Co.  (150  Fed.  406),  342. 
Mountain  Ice  Co.  v.  D.  L.  &  W.  R.  Co.  (21  I.  C.  C.  45),  250,  383. 
Mountain  Ice  Co.  v.  D    L.  &  W.  R.  Co.   (21  I.  C.  C.  596),  213. 
Munn  v.  Illinois   (94  U.  S.         ,4  Otto.  113,  24  L.  Ed.  77),   16,  45,  61, 

63,    80. 
Murphy,  Wasey  &  Co.  v.  Wabash  R.  Co.   (5  I.  C.  C.  122,  3  I.   C.  R. 

725),    395. 
Murray  v.  Chicago  &  N.  W.  R.  Co.   (62  Fed.  24),  383. 
Murray  v.  Chicago   &  N.  W.   R.   Co.    (92   Fed.   868,   35   C.   C.  A.  62), 

583. 
Musco  V.  United  Surety  Co.   (132  App.  Div.  300,  117   X.  Y.  Sup.  21, 

196    X.    Y.    459,    90    X.    E.    171),    37. 
Muser  v.  Magone   (155  U.  S.  240,  39  L.   Ed.  13.'.,  15   Sup.   Ct.  77),  396. 
Muskogee  Commercial  Club  v.  Missouri,  K.  &  T.  Ry.  Co.  (13  I.  C.  C. 

68),    416. 
Muskogee  Traffic  Bureau  v.  A.  T.  &  S.  F.  R.  Co.  (17  I.  C.  C.  169),  99. 
Mutual   Rice  Trade   &  Development  Asso.  v.   International   &   G.    X. 

R.    Co.    (23    I.    C.    C.    219),    112. 
Mutual  Transit  Co.  v.  United  States   (178  Fed.  664),  65. 
Myers  v.  Penn.  Co.  (2  I.  C.  C.  573,  2  I.  C.  R.  403,  544),  263,  392,  416. 


N. 

Xash   V.   Page    (80   Ky.   539,   44   Am.    Rep.   490\    45. 

Xash  V.  United  States   (186  Fed.  489,  108  C.  C.  A.  467),  486. 

Xash   V.   United   States    (229   U.    S.   373,   57    L.    Ed.    1232,   33   Sup.    Ct. 

780),    486. 
Xashville,  Chatta.  &  St.  L.  Ry.  Co.  v.  Alabama   (128  U.  S.  90.  32  L. 

Ed.   352,  9   Sup.    Ct.   28),   22. 


Table  of  Cases  Cited.  lxxv 

[  References  are  to  Sections.  ] 

Nashville  C.  &  St.  L.  R.  Co.  v.  Burnside  Mills   (219  U.  S.  186,  55  L. 

Ed.   167,  31  Sup.  Ct.  164,  31  L.  R.  A.   (N.  S.),  7),  439. 
Na&hville  Grain  Ex.  v.  United  States  (191  Fed.  37),  166. 
National  Fire  Proofing  Co.  v.  Masons  Builders  Asso.   (169  Fed.  259, 

94  C.   C.  A.  535,  26  L.   R.  A.   (N.  S.),   148),  486,  489,  492. 
National    Folding    Box    &    Paper    Co.    v.    Robertson    (99    Fed.    985,    2 

Fed.  Anti-Trust  Dec.  4),  486. 
National  Harrow  Co.  v.  Hench   (76  Fed.  667,  1  Fed.  Anti-Trust  Dec. 

610),  486. 
National  Harrow  Co.  v.   Hench    (83   Fed.  36,  27   C.   C.  A.  349,   39   L. 

R.   A.   299,    1    Fed.   Anti-Trust    Dec.    742),   486. 
National  Harrow  Co.  v.  Hench  (84  Fed.  226,  1  Fed.  Anti-Trust  Dec. 

746),   486. 
National  Harrow  Co.  v.  Quick  (67  Fed.   130,  1  Fed.  Anti-Trust  Dec. 

443,    608),    486. 
National  Harrow  Co.  v.  Quick  (74  Fed.  236,  20  C.  C.  A.  410),  486. 
National  Hay   &  Grain   Shippers'   Asso.  v.   L.   S.   &   M.   S.   R.   Co.    (9 

I.  C.  C.  264),  88. 
National  Hay  Asso.  v.  L.  S.  &  M.  S.  R.  Co.   (9  I.  C.  C.  264),  80,  88, 

266,    339. 
National  Hay  Asso.  v.  M.  C.  R.  Co.  (19  I.  C.  C.  34),  96,  99,  266. 
National   Machy.    &  Wrecking   Co.   v.   Pittsburg,    etc.,    R.    Co.    (11    I. 

C.  C.  581),  88,  346. 
National  Pole  Co.  v.  C.  &  M.  O.  R.  Co.  (211  Fed.  65),  317,  383,  407. 
National  Refining  Co.  v.  A.  T.  &  S.  F.  R.  Co.  (18  I.  C.  C.  389),  215. 
National  Surety  Co.  v.  State  Bank  (120  Fed.  593,  56  C.  C.  A.  657,  61 

L.   R.   A.   394),   60. 
National  Water  Works  Co.  v.  Kansas  City  (62  Fed.  853),  84. 
National  Wool  Growers  Asso.  v.  O.  S.  R.  Co.  (23  I.  C.  C.  151),  207. 
Naylor  &  Co.  v.   L.  V.   R.   Co.    (15   I.   C.   C.  9,   18  I.   C.   C.  624),  208, 

383,    394,    407. 
Nebraska-Iowa  Grain  Co.  v.  Union  Pac.  Ry.  Co.  (15  I.  C.  C.  90),  168. 
Nebraska  State  R.  R.  Com.  v.  C.  B.  &  Q.  R.  Co.  (23  I.  C.  C.  121),  99. 
Nebraska  State  R.  R.  Com.  v.  C.  V.  R.  Co.   (32  I.  C.  C.  41),  88. 
Nelson   v.   United   States    (201   U.   S.   92,   50   L.    Ed.   673,   26   Sup.    Ct. 

358,  2  Fed.  Anti-Trust  Dec.  920),  486. 
New  Albany  Furniture  Co.  v.  Mobile,  etc.,  R.  Co.   (13   I.  C.  C.  594), 

383. 
New  Jersey   Fruit   Ex.   v.    Cent.    R.    Co.   of   N.  J.    (2    I.    C.    C.    142,   2 

I.  C.  R.  84),  335. 
Newland  v.  Nor.  Pac.  R.  Co.  (6  I.  C.  C.  131,  4  I.  C.  R.  474),  105. 
Newman  Lumber  Co.  v.  M.  C.  R.  Co.  (26  I.  C.  C.  97),  206,  210. 
New  Mexico  Coal  Rates  (28  I.  C.  C.  328),  397. 
New  Mexico  v.  D.  &  R.  G.  R.  Co.  (12  N.  M.  425,  78  Pac.  74),  58. 
New    Mexico    Wool    Growers'    Asso.    v.    A.    T.    &    S.    F.    R.    Co.    ( — 

N.    M.  ,   145   Pac.    1077),   9. 


Lxxvi  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

New   Orleans   Board  of  Trade  v.  L.   &  N.   R.   Co.    (17   I.   C.   C.  231), 

63,    222,    392,    395. 
New  Orleans  Board  of  Trade  v.  I.   C.   R.  Co.   (23   I.   C.  C.  465),  169, 

208,   346. 
New   Orleans   Board   of  Trade  v.   I.   C.   R.   Co.    (29   I.   C.   C.   32),   134, 

208,   383. 
New  Orleans  Cotton   Ex.  v.   Cincinnati,  N.  O.   &  T.  P.   R.   Co.   (2  I. 

C.  C.  375,  2  I.  C.  R.  289),  335,  339,  346. 
New   Orleans    Cotton   Ex.   v.   111.   Cent.   R.    Co.    (3   I.   C.    C.   534,  2   I. 

C.    R.    777),    335,    339,    345,    346. 
New  Orleans  Cotton  Ex.  v.  Louisville,  N.  O.  &  T.  R.  Co.  (4  I.  C.  C. 

694,  3   I.   C.   R.  523),   513. 
New  Orleans  Gas  Lig-ht  Co.  v.  Drainage  Com.   (197  U.   S.  453,  49   L. 

Ed.    831,   25    Sup.    Ct.   471),    54. 
New   Orleans   Live   Stock   Ex.   v.  Tex.   &  Pac.   Ry.    Co.    (10   L   C.    C. 

327),  346. 
Newport   N.  &  M.  V.  R.  Co.  v.  United  States   (61   Fed.  488,  9   C.   C. 

A.   579),   481. 
Newton  Gum  Co.  v.  Chicago,  B.  &  Q.  R.  Co.  (16  L  C.  C.  341),  358. 
New  York  &  N.   E.   R.   Co.  v.   Bristol    (151  U.   S.   556,  38  L.   Ed.  269, 

14    Sup.    Ct.    437),    15. 
New  York   &  N.   Ry.   Co.   v.   New  York   &  N.   E.   Ry.   Co.    (50   Fed. 

867),   149,   347. 
New  York  &  N.  Ry.  Co.  v.  New  York  &  N.  E.  Ry.  Co.   (4  L  C.  C. 

702,    3    L    C.    R.    542),   347. 
New  York  Board  of  Trade  v.   Penn.  R.   Co.   (4  L  C.   C.  447,  2   L  C. 

R.    660,    734,    755,    800,    3    L    C.    R.    417),    339,    345,    358. 
New  York  C.  &  H.  R.  Co.  v.  Hudson  County   (227  U.  S.  248,  57  L. 

Ed.  499,  33  Sup.  Ct.  269,  76  N.  J.  L.  664,  74  Atl.  954),  13,  43. 
New  York  C.  &  H.  R.  R.  Co.  v.  Int.  Com.  Co.  (168  Fed.  131),  309. 
New  York  C.  &  H.  R.  R.  Co.  v.  New  York  (165  U.  S.  628,  41  L.  Ed. 

853,  17  Sup.  Ct.  418,  142  N.  Y.  646,  37  N.  E.  568),  15. 
New  York  C.  &  H.  R.  R.  Co.  v.  United  States   (165  Fed.  833.  91   C. 

C.  A.  519),  481. 
New  York  C.  &  H.  R.  R.  Co.  v.  United  States   (166  Fed.  267,  92  C. 

C.  A.  331),  371. 
New  York  C.  &  H.  R.  R.  Co.  v.  United  States   (212  U.  S.  481,  53  L. 

Ed.   613),   29    Sup.    Ct.   304),   63,   86,   187,   335,   371,   372. 
New  York  C.  &  H.  R.  R.  Co.  v.  United  States   (212  U.  S.  500,  53  L. 

Ed.   624,  29   Sup.    Ct.  309),  204.  212,   371. 
New  York  C.  R.  Co.  v.  Lockwood   (17  Wall         ,  84  U.  S.  357,  21  L. 

Ed.   627),   201. 
New  York  City  v.  New  England  Transp.  Co.  (14  Blatch.  159,  13  Fed. 

Cas.    10197),    53. 
New  York  Dock   Co.  v.   B.   &  O.   R.   Co.    (32   I.  C.   C.   568),   121. 
New  York  Life   Ins.    Co.   v.   Deer   Lodge    County    (231   U.   S.   495,   58 

L.   Ed.  332,   34   Sup.   Ct.   167),  2. 


Table  of  Cases  Cited.  lxxvii 

[  References  are  to   Sections.  ] 

New  York  L.  &  W.  Ry.  Co.  v.  Erie  R.  Co.  (31  App.  Div.  378,  52  N. 

Y.   Sup.  318,   157   N.  Y.  G74,   51   N.   E.   1092),   13. 
New  York  Mercantile  Co.  v.  B.  &  O.  R.  Co.  (36  I.  C.  C.         ),  306. 
New  York,  N.  H.  &  H.  R.  Co.  v.  Int.  Com.  Com.  (200  U.  S.  361,  50 

L.    Ed.  515,  26  Sup.   Ct.  272),   66,   172,   186,  345. 
New  York,  N.  H.   &  H.  R.   Co.  v.   New  York   (165  U.  S.  628,  41   L- 

Ed.    853,    17    Sup.    Ct.    418),    31. 
New  York,  N.  H.  &  H    R.   Co.  v.  New  York   (142  N.  Y.  646,  37  N. 

E.    568),    312. 
New  York,  N.  H.  &  H.  R.  Co.  v.  Piatt  (7  I.  C.  C.  323),  345,  359,  361. 
New  York  Produce  Ex    v.  B.  &  O.  R.  Co.  (7  I.  C.  C.  612),  346,  358. 
New  York  Produce  Ex.  v.  N.  Y.  C.  &  H.  R.  Co.  (3  I.  C.  C.  137,  2  I. 

C.  R.  13,  28,  353),  345,  346,  360. 
Nicola,  Stone  &  Myers  Co.  v.  Louisville  &  N.  R.  Co.  (14  I.  C.  C.  199), 

204,  207,  213,  214,  218,  222,  383,  395,   408,  449. 
Nichols  &  Cox  Lumber  Co.  v.  United  States  (212  Fed.  588),  371,  385. 
Nicholson  v.  Great  W.  Ry.  Co.   (5  C.  B.  N.  S.  366),  509. 
Nineteen    Hundred    and    Fifteen   Western    Rate    Advance    Case.      See 

Western   Rate  Advance   Case   1915n. 
Nix  &  Co.  V.  S.  R.  Co.  (31  L  C.  C.  145),  383. 
Nobles   Bros.   Gro.   Co.  v.   Ft.  Worth   &   D.   C.   R.   Co.    (12   L   C.   C. 

242),  346. 
Nolen  V.  Riechman   (225   Fed.  812),  337. 

Nollenberger  v.  Missouri  Pac.  R.  Co.   (15  I.  C.  C.  595).  218,  392. 
Norfolk    &   W.    R.    Co.   v.    Conley    (236   U.    S.    605,    59    L.    Ed.   — ,    35 

Sup.   Ct.  437),  48,  87,  311. 
Norfolk   &  W.    R.    Co.  v.   Dixie  Tobacco    Co.    (228   U.    S.    593,   57   L. 

Ed.  980,  33  Sup.   Ct.  609,  111  Va.  813,  69  S.   E.  1106),  295,  439. 
Norfolk  &  W.  R.  Co.  v.  Pennsylvania   (136  U.  S.  114,  34  L.  Ed.  394, 

10  Sup.  Ct.  958),  335. 
Norfolk  &  W.  R.  Co.  v.  United  States  (195  Fed.  953),  122. 
Norfolk  Truckers  Ex.  v.  W.  U.  Tel.  Co.  (82  S.  E.  92),  340. 
Northbound  Rates  on  Hardwood   (32  L  C.  C.  521),  101. 
North   Carolina  Corp.   Com.  v.  A.  C.  L.  Ry.  Co.   (137  N.   C.  1,  49  S. 

E.  191,  115  Am.  St.  Rep.  636),  12,  19. 
North   Carolina  R.   Co.  v.   Zachary    (232  U.   S.   248,  58   L.   Ed.   591,   34 

Sup.    Ct.   305,    156    N.    C.    496,    72    S.    E.    858),    22. 
North  Dakota  v.  N.  P.  R.  Co.  (17  N.  D.  223,  116  N.  W.  92),  50. 
Northern  Pac.  R.  Co.  v.  Minnesota  (208  U.  S.  583,  52  L.  Ed.  630,  28 

Sup.  Ct.  341),  54. 
Northern  Pac.  R.  Co.  v.  North  Dakota  (216  U.  S.  579,  54  L.  Ed.  624, 

30  Sup.  Ct.  423),  50. 
Northern  Pac.  R.  Co.  v.  North  Dakota  (236  U.  S.  585,  59  L.  Ed.  — , 

35  Sup.  Ct.  429),  48,  50,  88,  90,  100,  101,  311. 
Northern    Pac.    R.    Co.    v.    Pacific    Coast    Lumber    Mfrs.    Asso.    (165 

Fed.  1,  91  C.  C.  A.  39),  304,  307,  443,  490. 
Northern  Pac.  R.   Co.  v.  Washington   (13  Pac.  604),  9. 


Lxxviii  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Northern  Pac.  R.   Co.  v.  Washington  ex  rel.   Dustin   (142  U.  S.  492, 

35  L.  Ed.  1092,  12  Sup.  Ct.  283),  9,  347. 
Northern  Pac.  R.   Co.  v.  Washington   (222  U.  S.  370,  56  L.   Ed.  237, 

32  Sup.   Ct.   160),  4,  22,  58. 
Northern  Pac.  T.  Co.  v.  U.  S.   (184  Fed.  603,  106  C.  C.  A.  583),  481. 
Northern    Securities    Co.    v.    Harriman    (134    Fed.    331,    67    C.    C.    A. 

245,  2  Fed.  Anti-Trust  Dec.  618),  489. 
Northern  Securities  Co.  v.  United  States   (193  U.  S.  197,  24  Sup.  Ct. 

436,  48  L.  Ed.  679,  2  Fed.  Anti-Trust  Dec.  338),  11,  58,  486. 
North  Lonsdale  Iron  &  Steel  Co.  v.  Furriers'  L.  &  N.  W.  &  M.  Ry. 

Co.   (7  V.y.  &  Canal  Traffic  Cas.  146,  60  L.  J.  Q.  B.  419),  94. 
Northwestern   Consolidated   Milling  Co.   v.   Callam   &  Son    (177   Fed. 

786),  486. 

O. 

O'Brien  Com.  Co.  v.  C.  &  N.  W.  R.  Co.  (20  I.  C.  C.  68),  213. 
Ocheltree  Grain  Co.  v.  St.  L.  &  S.  F.  R.  Co.   (13  I.  C.  C.  46),  105. 
Ogden  Gateway  Case   (35  I.  C.  C.  131),  401. 
O'Halloran  v.  Am.  Sea  Green  Slate   Co.   (207  Fed.  187),  486. 
Ohio  Milk  Product  Shippers  v.  E.  R.  Co.  (21  I.  C.  C.  522),  89. 
Ohio  R.  &  W.  R.  Co.  v.  Dittey  (232  U.  S.  576,  58  L.  Ed.  737,  34  Sup. 

Ct.   372,  203   Fed.   537),   59. 
Oklahoma  v.   Kans.  Natural  Gas   Co.    (221  U.    S.  229.   55  L.   Ed.  716, 

31   Sup.  Ct.  564),  7. 
Oliver  v.  C.  R.  I.  &  P.  R.  Co.  (89  Ark.  466,  117  S.  W.  238),  25,  26. 
Omaha  &  C.  B.  St.  R.  Co.  z'.  Int.  Com.  Com.   (191  Fed.  40,  179  Fed. 

243),  66,  226,  337,  400. 
Omaha  &  C.  B.  St.  R.  Co.  v.  Int.  Com.  Com.   (230  U.  S.  324,  57   L. 

Ed.   1501,   33   Sup.   Ct.   890,  40  L.   R.  A.    (N.   S.)    385),   66,   226,  313, 

337,   400. 
Omaha  Grain  Ex.  v.  C.  B.  &  Q.  R.  Co.  (26  I.  C.  C.  553),  401. 
Operaton  Car  Ferry  Boats  A.  A.  R.  Co.  (34  I.  C.  C.  83),  354. 
Operation    Car   Ferry   Boats  P.   M.   &   B.   L.    E.   R.   Co.    (34   I.   C.   C. 

86),  354. 
Oregon   R.   &   N.   Co.  v.  Campbell   (230  U.   S.   525,  57  L.   Ed.   1604.   33 

Sup.  Ct.  1026,  173  Fed.  057.  177  Fed.  318,  180  Fed.  253),  45,  68,  84. 
Oregon  R.  &  Nav.  Co.  v.  Fairchild  (224  U.  S.  510.  56  L.  Ed.  863,  32 

Sup.   Ct.  535),   13,   14,   396. 
Oregon  Short  Line  v.  Northern   Pac.  R.   Co.   (3  I.  C.   C.  264.  2  I.  C. 

R.  639),  392. 
Oregon  S.  L.  &  U.  N.  Ry.  Co.  v.  Northern  Pac.  R.  Co.  (51  Fed.  465), 

149,   346,  347. 
Oregon  S.  L.  &  U.  N.  Ry.  Co.  v.  Northern  Pac.  R.  Co.  (61  Fed.  158, 

9  C.   C.  A.  409),  149,  346,  347. 
Oregon-Washington  R.  &  Nav.  Co.  v.  Wilkinson  (188  Fed.  363),  486. 
Osborne  v.  Bank  (9  Wheat.  738,  6  L.  Ed.  204),  292. 


Table  of  Cases  Cited.  Lxxix 

[  References  are  to  Sections.  ] 

Osborne  v.  Chicago  &  North  W.  Ry.  Co.   (48  Fed.  49).  214,  248,  383. 
Oshkosh  Logging  Tool  Co.  v.  Chicago  &  N.  W.  Ry.  Co.  (14  I.  C.  R. 

109),  408. 
Otis   Elevator   Co.  v.   Geiger    (107   Fed.    131,   2    Fed.   Anti-Trust  Dec. 

66),   486. 
Ottumwa  Bridge  Co.  v.   Chicago,  M.   &  St.   P.   Ry.   Co.   (14   I.   C.  C. 

121),  101,   104,   339,  383. 
Ottumwa  Com.  Asso.  v.  Chicago,  B.  &  Q.  R.  Co.  (17  I.  C.  C.  413),  118. 
Ouachita  Packet  Co.  v.  Aikin  (121  U.  S.  444,  30  L.  Ed.  976,  7  Sup.  Ct. 

907),   56. 
Oxlade  v.  North  Eastern   R.   Co.    (1   C.   B.   N.   S.  454,  26  L.  J.   C.   P. 

129,  1  N.  &  Mac.  72),  144. 
Ozark   Fruit   Growers'   Asso.  v.   St.   L.   &   S.    F.   R.   Co.    (16   I.   C.   C. 

134),   96. 
Ozark  Fruit  Growers'  Asso.  v.  St.  L.  &  S.  F.  R.  Co.  (16  I.  C.  C.  106), 

122. 

P. 

Pabst  Brewing  Co.  v.  Crenshaw  (198  U.  S.  17,  49  L.  Ed.  925,  25  Sup. 

Ct.  552),   58. 
Pacific  Coast  Gypsum  Co.  v.  O.  W.  R.  Co.  (30  I.  C.  C.  135),  181. 
Pacific  Coast  Jobbers'  &  Mfrs.'  Asso.  v.  Southern  Pac.  Co.   (12  I.  C. 

C.    319),    358. 
Pacific  Coast  Lumber  Mfrs.'  Asso.  v.   N.  P.  R.   Co.   (14  L  C.  C.  51), 

195,  400. 
Pacific   Coast   Lumber   Mfrs.'  Asso.  v.    Northern    Pac.    R.   Co.    (14   L 

C.  C.  23),  400. 
Pacific  Coast  R.  Co.  v.  United  States   (173  Fed.  448),  66,  103. 
Pacific    Coast    S.    S.    Co.   v.    Railroad    Comrs.    (9    Sawy.    253,    18    Fed. 

10),   335. 
Pacific   Creamery   Co.   7'.   A.   T.    &   S.   F.    Ry.    Co.    (29    L    C.    C.   405), 

408),   107. 
Pacific  Elevator  Co.  v.  C.  M.  &  St.  P.  R.  Co.  (17  I  C.  C.  373),  211. 
Pacific   Fuel  and   Supply    Co.  v.   Grand   T.  W.    Ry.    Co.    (27    L    C.    C. 

24),  399. 
Pacific  Nav.  Co.  v.  So.  Pac.  Co.   (31  L  C.  C.  472),  121,  194,  338,  346, 

347,    375,    401. 
Pacific  Tel.  &  Tel.   Co.  v.  Anderson   (196  Fed.   699),  327,  486. 
Page  V.  Delaware,  L.   &  W.  R.  Co.   (6  L  C.   C.  148,  4  L   C.   R.  525), 

346,  387,   392. 
Page  V.   Delaware,   L.   &  W.   R.   Co.    (6   L    C.   C.   148,   548),  339,   346, 

386,  392,  416. 
Paine  Bros.  v.  Lehigh  Valley  R.  Co.  (7  L  C.  C.  218),  116,  156,  345. 
Paine  Lumber  Co.  v.  Neal   (212  Fed.  259),  489. 
Paine  Lumber  Co.  v.  Neal   (214  Fed.  82,  30  C.  C.  A.  522),  489. 
Pankey  v.  Richmond  &  D.  R.  Co.  (3  L  C.  C.  658),  3  L  C.  R.  33),  3?3. 


Lxxx  Table:  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Pankey  &  Holmes  v.  Central  N.  E.  R.  Co.   (IS  I.  C.  C.  578),  110. 
Pardee  Works  v.  C.  of  N.  J.  R.  Co.  (29  I.  C.  C.  500),  88. 
Parfrey  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (20  I.  C.  C.  104),  110. 
Park  &  Sons  (John  D.)   v.  Hartman   (153  Fed.  24,  82  C.   C.  A.  158,  12 

L.   R.   A.    (N.    S.)    1135).   486. 
Parkersburg   &  O.   R.   T.   Co.   v.   Parkersburg    (107   U.    S.    691,   27   L. 

Ed.  584,  2  Sup.  Ct.  732),  56. 
Parks  V.  Cincinnati  &  M.  V.  R.  Co.  (10  I.  C.  C.  47),  175. 
Parsons  v.  Chicago  &  N.  W.   R.   Co.    (167  U.  S.  447,  42  L.   Ed.  231, 

17  Sup.    Ct.   887),    34,    134,    153,    199,   205,   345,   346,   383. 

Parsons  v.   Chicago   &  N.  W.   R.   Co.    (63   Fed.   903,   11   C.   C.  A.  489, 

37   U.   S.   App.   394),   346,   348,   383. 
Partridge  &  Son  v.  P.   R.   Co.    (26  I.   C.   C.  484),   145. 
Patapsco  Guano  Co.  v.  North  Carolina  (171  U.  S.  345,  43  L.  Ed.  191, 

18  Sup.  Ct.  862),  58. 

Patterson    v.    United    States    (Cash    Register    Case)     (222    Fed.    599. 

—  C.  C.  A.  — ),  487. 
Paxton  Tie  Co.  v.  Detroit  So.  R.  Co.  (10  I.  C.  C.  422),  383. 
Payne-Gardner  Co.  v.  Louisville  &  N.  R.  Co.   (13  I.  C.  C.  638),  339. 
Peale,  Peacock  &  Kerr  v.  C.  of  N.  J.  R.  Co.  (18  I.  C.  C.  25),  10,  25. 
Pearsall  v.   G.  N.  R.   Co.    (161  U.  S.  646,  40  L.   Ed.  838,  16  Sup.   Ct. 

705),    11. 
Peavy  &  Co.  (F.  H.),  Omaha  Elevator  Co.  et  al.  v.  U.  P.  R.  Co.  and 

Martin   A.    Knapp,   et   al.,   composing   Int.    Com.    Com.    (176   Fed. 

409,   410),    168,    197,    314,   331,   346. 
Pecos  &  N.  T.  Ry.  Co.  v.  Railroad  Com.  of  Texas  (56  Tex.  Civ.  App. 

422,    120    S.    W.    1055),    9. 
Pecos   Mercantile   Co.  v.  Atchison,  T.   &  S.   F.   Ry.   Co.    (13   I.   C.   C. 

173),  348. 
Peik  V.  Chicago  &  N.  W.  R.  Co.   (94.  U.  S.  164,  24  L.  Ed.  97),  43,  45. 
Pelham,  Ga.  Town  of,  v.  Atlantic  C.  L.  R.  Co.  (28  I.  C.  C.  433),  108. 
Penn  Refining  Co.  v.  Western  N.  Y.  &  P.  R.  Co.  (208  U.  S.  208,  52 

L.  Ed.  456,  28  Sup.  Ct.  268),  317,  383,  389,  406,  407. 
Pennsylvania  v.  Wheeling  Bridge   Co.   (13  Hovif.  54  U.   S.  518,  14   L. 

Ed.  249),  54. 
Pennsylvania  Co.  v.  Louisville,  N.  A.  &  C.  R.  Co.   (3  I.  C.  C.  223.  2 

L   C.  R.  603),  392. 
Pennsylvania   Parafifine  Works  v.  P.   R.   Co.    (34   I.   C.   C.   179),   175. 
Pennsylvania  Millers'  State  Asso.  v.   Philadelphia  &  R.  R.   Co.    (8   I. 

C.   C.   531),   SO,   335,   339,   348,   358. 
Penn.    R.    Co.    v.    Clark    Bros.    Coal    Co.    (241    Pa.    515,    8S   Atl.    754), 

317,  383. 
Penn.  R.  Co.  v.  Clark  Bros.  Coal  Co.  (238  U.  S.  456,  59  L.  Ed.  — ,  35 

Sup.  Ct.  896),  198,  317,  383. 
Penn.   R.   Co.  v.   Hughes    (191  U.   S.   477,   48   L.    Ed.   268,   24   Sup.    Ct. 

132),   32,   34. 


Table  of  Cases  Cited.  lxxxi 

[  References  are  to  Sections.  ] 

Penn.  R.  Co.  v.  International  Coal  Co.  (173  Fed.  1,  97  C.  C.  A.  383), 

138,    205,    208,    215,    383. 
Penn.  R.  Co.  v.  International  Coal  Mining  Co.   (230  U.  S.  184,  57  L. 

Ed.  1446,  33  Sup.  Ct.  893),  134,  137,  138,  205,  208,  215,  297,  317,  383, 

443. 
Penn.   R.   Co.  v.   Int.   Com.   Com.    (193   Fed.   81),  208,  383. 
Penn.  R.  Co.  v.  Jacoby  (239  U.  S.  — ,  60  L.  Ed.  — ,  36  Sup.  Ct.  — ),  408. 
Penn.    R.    Co.   v.    Knight    (192    U.    S.    21,   48    L.    Ed.    325,   24    Sup.    Ct. 

202),    55. 
Penn.    R.    Co.   v.    Preston    (237   U.   S.    121,    59   L.    Ed.   — ,   35    Sup.    Ct. 

484),    61. 
Penn.  R.  Co.  v.  Puritan  Coal  Co.   (237  Pa.  420,  85  Atl.  426,  Ann.   Cas. 

1914B,    37),    174,    296,    405. 
Penn    R.    Co.   v.    Puritan    Coal    Co.    (237    U.   S.    121,   59    L.    Ed.   — ,   35 

Sup.   Ct.  484,  214   Fed.  445),   174,   198,  296. 
Penn.   R.   Co.  v.  United   States   (236  U.   S.   351,   59   L.   Ed.  — ,   35   Sup. 

Ct.   370),   73,   150,   192,    195,   347,  401. 
Pennsylvania   Sugar   Refining   Co.   v.   Am.    Sugar   Ref.    Co.    (160   Fed. 

144),   492. 
Pennsylvania   Sugar   Refining  Co.   v.   Am.    Sugar   Ref.    Co.    (166    Fed. 

254,  92  C.   C.  A.   318),  492. 
Pennsylvania  Tob.   Co.  v.   Old  Dominion   S.   S.  Co.   (18  I.   C.   C.   197), 

101.  . 

Pensacola  &  A.  R.   Co.  v.  Florida   (25  Fla.  310,  5  So.  833),  49. 
Pensacola  Tel.    Co.  v.   Western  U.   Tel.    Co.    (96  U.   S.   1,   24   L.    Ed. 

708),    2. 
People  V.  Board  of  R.  R.  Comrs.  (53  App.  Div.  (N.  Y.)  61),  49. 
People  V.  Booth  &  Co.  (42  Misc.  327,  86  N.  Y.  Sup.  272),  58. 
People  V.  Bootman  (180  N.  Y.  1,  72  N.  E.  505),  58. 
People  V.  Budd  (117  N.  Y.  1,  5  L.  R.  A.  559,  22  N.  E.  670),  45. 
People  V.   Buffalo   Fish   Co.    (164    N.   Y.   93,   58   N.   E.   34,   79   Am.   St. 

Rep.  622,  52  L.  R.  A.  803),  58. 
People  V.  Caldw^ell  (71  N.  Y.  Sup.  654,  64  App.  Div.  46),  37. 
People  V.  Chicago  &  N.  W.  Ry.  (57  111.  436,  93  N.  E.  112),  13. 
People  V.  Chicago,  I.  &  L.  Ry.  Co.  (223  111.  581,  79  N.  E.  144),  432. 
People   V.   D.    &   H.    Canal    Co.    (32   N.   Y.   App.    Div.    120,    52   N.   Y. 

Supp.  850,  165  N.  Y.  362,  59  N.  E.  138),  9. 
People  V.  Erie  R.  Co.  (135  App.  Div.  767,  119  N.  Y.  Supp.  893),  4. 
People  V.  Erie  R.  Co.  (19.8  N.  Y.  369,  91  N.  E.  849),  4. 
People  V.  Joline  (65  Misc.  Rep.  394,  121  N.  Y.  Sup.  857),  27. 
People  V.  N.  Y.  L.  E.  &  W.  R.  Co.  (104  N.  Y.  58,  9  N.  E.  856),  9. 
People  V.  Nevir  York,  etc.,  R.  Co.  (55  Hun  409,  8  N.  Y.  Sup.  673),  31. 
People  V.  O'Neal  (110  Mich.  324,  68  N.  W.  227,  33  L.  R.  A.  697),  33. 
People  V.  St.  L.  A.  &  T.  H.  R.  Co.   (176  111.  512,  52  N.   E.  292),  49. 
People  V.  Stevens  (197  N.  Y.  1,  90  N.  E.  60),  51. 
People  V.  Warden  of  City  Prison  (157  N.  Y.  116,  51  N.  E.  1006,  43  L. 

R.  A.  264,  68  Am.  St.  '::63),  37. 


Lxxxii  Table  of  Cases  Cited.     • 

[  References  are  to  Sections.  ] 

People's  Fuel  &  Supply  Co.  t'.  G.  T.  W.  R.  Co.  (27  I.  C.  C.  24),  399. 
People's  Fuel  Co.  v.  G.  T.  W.   R.   Co.   (30  I.   C.   C.  657),  397. 
People's  Tobacco    Co.  t.   Am.   Tob.    Co.    (170   Fed.   396,   96   C.    C.   A. 

566),  486. 
Perry  v.  Florida,  C.  &  P.  R.  Co.  (5  I.  C.  C.  97,  3  I.  C.  R.  740),  348,  383. 
Pettibone  v.  United  States  (148  U.  S.  197,  37  L.  Ed.  419,  13  Sup.  Ct. 

542),    486. 
Phelps  V.  Texas  &  Pac.  R.  Co.  (6  I.  C.  C.  36.  4  I.  C.  R.  44),  345.      ' 
Philadelphia  &  R.  Ry.  Co.  v.  United  States   (219   Fed.  988),  393. 
Philadelphia  B.   &  W.   R.   Co.  v.   Schubert   (224  U.  S.  603,  56  L.   Ed. 

911,  32  Sup.  Ct.  589),  56,  332. 
Philadelphia   Co.   v.    Stimson    (223   U.    S.   605,   56   L.    Ed.   570,   32   Sup. 

Ct.  340),  56. 
Philadelphia  Veneer  Lumber  Co.  v.   C.  of  N.  J.   R.    Co.    (25   I.   C.   C. 

653),  398. 
Phillips  V.  Grand  Trunk  Western  R.  Co.   (11  I.  C.   C.  659),  181,  346. 
Phillips   V.    G.   T.   W.    R     Co.    (236   U.    S.   662,   59    L.    Ed.   — ,   35   Sup. 

Ct.    444),   383,    385,    449. 
Phillips  V.  lola  Portland  Cement  Co.   (125  Fed.  593,  61   C.   C.  A.   19, 

2   Fed.   Anti-Trust   Dec.  284),   487. 
Phillips  V.   lola  Portland   Cement   Co.   (192  U.   S.   606,   48   L.    Ed.   585, 

24    Sup.    Co.    850),   487. 
Phillips,  Bailey  &  Co.  v.  Louisville  &  N.  R.  Co.   (8  L  C.  C.  93),  346, 

348. 
Phillips-Trawick-James  Co.  v.  Southern  Pac.  Co.  (13  L  C.  C.  644),  5. 
Phoenix  Printing  Co.  v.  M.  K.  &  T.  R.  Co.  (31  L  C.  C.  289),  383. 
Pickering  Phipps   v.   London   &  N.  W.   Ry.    Co.    (2  Q.    B.    D.    (1882) 

229),    128,    348. 
Pierce  Co.  v.  Wells-Fargo   Ex.   Co.    (236  U.   S.  278,  59  L.   Ed.  — ,  35 

Sup.    Ct.    351),    439. 
Pig  Iron  Rates  from  Va.  to  Penn.  (27  L  C.  C.  343),  351. 
Pipe  Line   Case   (204  Fed.   798),   381. 
Pipe  Line  Cases  (See  United  States  v.  Ohio  Oil  Co.)   (234  U.  S.  548. 

58  L.  Ed.  1459,  34  Sup.  Ct.  95),  381,  486. 
Pitts  V.  St.  L.  &  S.  F.  R.  Co.   (10  L  C.   C.  684),  358. 
Pittsburg,  etc.,   R.   Co.  v.   Baltimore   &  O.   R.   Co.    (3   L   C.    C.  465,  2 

L  C.   R.  572),  345,  358,  444. 
Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v.  Hunt  (171  Ind.  189.  86  N.  E.  328), 

9,    13. 
Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v.  Wood  (84  N.  E.  1009),  297. 
Planters'  Compress   Co.  v.   Cleveland,  etc.,   Ry.   Co.   (11   I.   C.   C.  382, 

606),    116,    339,    345. 
Planter's  Gin  &  Compress  Co.  v.  N.  Y.  &  M.  V.  R.  Co.   (16  L  C.  C. 

131),  346. 
Piatt  f.   Le  Cocq   (150  Fed.  391,  158  Fed.   723.  85  C.   C.  A.  621.  15   L. 

R.   A.    (N.   S.)    558),   8,   60. 
Plessy  V.  Ferguson  (163  U.  S.  537,  41  L.  Ed.  256,  16  Sup.  Ct.  1138),  29. 


Table  of  Cases  Cited.  i^xxxiii 

[  References  are  to  Sections.  ] 

Pollock  V.  Farmers'  Loan  &  Trust  Co.  (158  U.  S.  601,  39  L.  Ed.  1108, 

15  Sup.  Ct.  912),  407. 
Ponca  City  Milling  Co.  v.  Missouri,  K.  &  T.  Ry.  Co.  (12  I.  C.  C.  26), 

345,   346. 
Pond-Decker  Lumber  Co.  v.  Spencer  (86  Fed.  846,  30  C.  C.  A.  430), 

180,  212,  358. 
Pooling  Freights,   Re   (115   Fed.   588),  352,  384. 
Poor  V.  Chicago,  B.  &  Q.  R.  Co.  (12  L  C.  C.  469),  416. 
Poor  Grain   Co.  v.   Chicago.   B.   &   Q.   R.   Co.    (12  L   C.   C.   418),   180, 

212,  339,  358,  361,  383. 
Port  Huron  &  Duluth  S.  S.   Co.  v.  P.  R.   Co.   (35  L  C.  C.  475),  151, 

194,    338. 
Port    Richmond    Ferry   v.    County   of   Hudson    (234   U.   S.   317,    58    L. 

Ed.  1330,  34  Sup.  Ct.  821,  82  N.  J.  L.  536,  82  Atl.  729),  53. 
Porter  v.  St.  L.  &  F.  R.  Co.  (78  Ark.  182,  95  S.  W.  953),  40. 
Portland  Ry.  L.  &  P.  Co.  v.  R.  R.  Com.  of  Oregon   (229  U.  S.  397, 

57  L.   Ed.  1248,  33  Sup.  Ct.  820,  56  Ore.  468,  105  Pac.  709),  43. 
Post  V.  A.  C.  L.  R.   Co.   (138   Ga.  763,  76  S.   E.  45),  34,  295. 
Post  V.   Buck  Stove  &  Range   Co.   (200  Fed.  918),  486. 
Postal   Tel.    Cable    Co.   v.   Adams    (155    U.    S.    688,   39    L.    Ed.   311,    15 

Sup.   Ct.   360),   314. 
Postal  Tel.  Cable  Co.  v.  Mobile  (179  Fed.  955),  2,  28. 
Potlach  Lumber  Co.  v.  Spokane  Falls  &  B.  Ry.   Co.   (157  Fed.  588), 

304,   443. 
Pound  V.  Turck   (95  U.  S.  459,  24  L.   Ed.  525),   54. 
Powhattan    Coal   &   Coke   Co.  v.   Norfolk   &  W.   R.   Co.    (13   L   C.   C. 

69),    175,    346. 
Prairie  Oil   &  Gas   Co.  v.  United   States    (204   Fed.   798),  67,   335,   387, 

486. 
Prentis   v.   Atlantic    C.    L.    R.    Co.    (211   U.   S.   210,   53    L.    Ed.    150,   29 

Sup.    Ct.    67),    60,    63. 
Prescott   &  A.    C.   R.    Co.   v.   Atchison,   T.   &   S.    F.    R.    Co.    (73   Fed. 

438,  1  Fed.  Anti-Trust  Dec.  604),   149,  347,  486. 
Proctor  &  Gamble  v.  Cincinnati,  H.   &  D.   R.   Co.   (4  L   C.   C.  443,  3 

L    C.    R.   374),    102,   416. 
Proctor  &  Gamble  v.  C.  H.  &  D.  R.  Co.  (9  L  C.  C.  440),  162,  178,  339. 
Proctor  &  Gamble  v.  United  States  (188  Fed.  221),  308. 
Proctor  &  Gamble  v.  United  States   (225  U.   S.  282,  56  L.   Ed.   1091, 

32  Sup.   Ct.   761),  26,  222,  308. 
Producers'    Pipe    Line    Co.   v.   St.    Louis,    L    M.    &   S.    Ry.    Co.    (12    L 

C.    C.    186),    392. 
Propeller  Niagara  v.  Cordes   (21    How.  62  U.   S.  7,  16  L.   Ed.  41),   55. 
Protection  of  Potatoes  in  Winter   (26  L   C.  C.  681),  337. 
Providence   Coal  Co.  v.   Providence   &  W.   R.   Co.   (1   L   C.   C.   107,  1 

L   C.   R.   316,  363),   345,   346. 
Provident  Institution  v.  Massachusetts  (6  Wall.,  72  U.  S.  611,  18  L.  Ed. 

907),  59. 


Lxxxiv  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Pueblo  Transportation  Asso.  v.   Southern  Pac.   Co.    (14  I.   C.   C.   82), 

358. 
Puget    Sound   Traction   Light    &    Power    Co.   z:    Reynolds    (223    Fed. 

371),  43. 
Pullman    Co.    v.    Croom    (231   U.    S.    571,    58    L.    Ed.    375,    34    Sup.    Ct. 

1S2),   453. 
Pullman    Co.   v.    Kansas    (216   U.    S.    56,    54    L.    Ed.    378,    30    Sup.    Ct. 

232),  59. 
Pullman  Co.  v.  Linke   (203  Fed.  1017),  42.  335. 
Pullman  Palace   Car  Co.  v.  Missouri  Pac.   R.   Co.    (115  U.  S.  587,  29 

L.   Ed.   499,   6   Sup.    Ct.   194),  347. 
Puritan  Coal  Mining  Co.  v.  P.  R.  Co.   (237  Pa.  448,  85  Atl.  426,  Ann. 

Cas.   1914B,   37),   405. 
Purity   Extract  Co.  v.  Lynch    (226  U.   S.   192,   57   L.   Ed.   84,  33   Sup. 

Ct.    44,    100    Miss.    650,    56    So.    316),    58. 

Q. 

Queen,  The   (184  Fed.  537,  206  Fed.  148,  124  C.  C.  A.  214),  56. 
Quimby  v.  Clyde  S.  S.  Co.   (12  L  C.  C.  392),  346. 

R. 

Rahway  V.   R.   Co.  v.   Delaware,  L.   &  W.   R.   Co.    (14   L   C.    C.   191), 

66,    344,    347. 
Rail   &  River   Coal   Co.  v.   Baltimore   &  O.    R.    Co.    (14   L   C.   C.   86), 

175,   395. 
Rail  &  River  Coal  Co.  v.  Yaple   (214  Fed.  273),  453. 
Railroad   Commission   Cases,    See    (Stone  v.   Farmers'   L.    &   T.    Co.), 

(116  U.  S.  307,  29  L.  Ed.  636,  6  Sup.   Ct.  334), 
Railroad  Com.  of  Ala.  v.  Cent,  of  Ga.  Ry.  Co.  (170  Fed.  225).  50. 
Railroad  Com.  of  Ark.  v.  St.  L.  L  M.  &  S.  R.  Co.   (24  L  C.  C.  293), 

347. 
Railroad  Com.  of  Ark.  v.  M.  &  N.  A.  R.  Co.  (30  L  C.  C.  488),  98. 
Railroad  Com.  of  Fla.  v    Savannah,  F.  &  W.  R.  Co.   (5  L  C.  C.  13,  3 

L   C.  R.  688),  335,  392,  394. 
Railroad  Com.  of  Fla.  v.  Savannah,  F.  &  W.  R.  Co.   (5  L  C.  C.  136, 

3   L   C.   R.  750),  335,  416. 
Railroad   Com.  of  Ga.,  Trammell,   et  al.,  v.   Clyde   S.   S.   Co.    (5   L   C. 

C.  324.  4  L  C.  R.  120),  See  Trammell  v.  Clyde  S.  S.  Co. 
Railroad  Com.  of  Ga.  v.  L.  &  N.  R.  Co.  (140  Ga.  817,  80  S.  E.  327),  442. 
Railroad  Com.  of  Iowa  v.  I.  C.  R.  Co.  (20  L  C.  C.  181),  126. 
Railroad   Com.   of  Kansas  v.  Atchison,  T.   &   S.   F.   Ry.   Co.    (8   L   C. 

C.    304),    346,   348. 
Railroad  Com.  of  Kansas  v.  A.  T.  &  S.  F.  R.  Co.  (22  L  C.  C.  407),  124. 
Railroad  Com.  of  Kansas  v.  M.  P.  R.  Co.  (71  Kas.  193,  80  Pac.  53),  9. 


Table  of  Cases  Cited.  lxxxv 

[  References  are  to  Sections.  ] 

Railroad  Com.  of  Kentucky  v.   Cincinnati,   N.   O.   &  T.   P.  R.   Co.    (7 

I.   C.   C.  380),  348. 
Railroad   Com.   of  Kentucky  v.   Louisville   &  N.  R.    Co.    (10   I.   C.    C. 

173),    197,   347. 
Railroad   Com.   of  Kentucky  v.   Louisville   &   N.   R.   Co.    (13   L   C.   C. 

300),  348. 
Railroad   Com.  of  Ky.   v.  Louisville   &  N.   R.   Co.    (192  U.   S.  568,  48 

L.  Ed.  565,  24  Sup.   Ct.  339),  9. 
Railroad  Com.  of  Louisiana  v.  St.  L.  S.  W.  Ry.  Co.  (23  L  C.  C.  31), 

3,  44,  62,   68,   145,   184,   222,  336,   346. 
Railroad  Com.  of  La.  v.  T.  &  P.  R.  Co.  (229  U.  S.^336,  57  L.  Ed.  1215, 

33   Sup.    Ct.   837),   68. 
Railroad    Com.    of    Mississippi   v.    111.    Cent.    R.    Co.    (203    U.    S.    335, 

51  L.   Ed.  209,  27  Sup.   Ct.  90),  21. 
Railroad   Com.   of  Mississippi  v.   Gulf   &  S.   L   R.   Co.    (78  Miss.   750, 

29   So.  789),  27. 
Railroad  Com.  of  Montana  v.  B.  A.  &  P.  Ry.  Co.   (31  L  C.   C.  641), 

88,   98,   100. 
Railroad  Com.  of  Nevada  v.  S.  P.  Co.   (21  L  C.  C.  329),  63,  145,  154, 

202,  244,   345,   346,   348. 
Railroad  Com.  of  Ohio  v.  Hocking  Valley  R.   Co.   (12  L  C.   C.  398), 

346,  395. 
Railroad   Com.  of  Ohio  v.  Worthington   (187   Fed.  965,  110   C.   C.  A. 

85,  225  U.  S.  101,  56  L.  Ed.  1004,  32  Sup.  Ct.  653),  25,  66,  68,  335. 
Railroad   Com.   of  S.    C.   v.   Columbia   &   G.   R.    Co.    (26   S.   C.   353,   2 

S.   E.   127),   9. 
Railroad  Com.  of  Tex.  v.  Texas  &  P.  R.   Co.   (40  S.  W.  829),  27. 
Railroad  Com.  of  Tenn.  v.  A.  A.  R.  R.  Co.  (17  L  C.  C.  418),  345,  346. 
Railroad  Com.  of  Tex.  v.  A.  T.  &  S.  F.  R.  Co.  (20  L  C.  C.  463),  95, 

124. 
Railroad   Com.  of  Tex.  v.   C.  R.  I.  &  P.  R.  Co.   (114  S.  W.  192,  102 

Tex.   393,    17   S.   W.   794),   9. 
R  R.  Com.  of  Ohio  v.  Worthington  (225  U.  S.  101,  56  L.  Ed.  1004,  32 

Sup.  Ct.  653),  25. 
Ralston  Townsite  Co.  v.  M.  P.  R.  Co.  (22  L  C.  C.  354),  192. 
Randolph  Lumber  Co.  v.   Seaboard  A.  L.  Ry.   Co.   (13   L   C.   C.  601), 

117,   346. 
Randolph  Lumber  Co.  v.   Seaboard  A.  L.  Ry.   Co.   (14  L   C.   C.  338), 

416. 
Ransome  v.   Eastern   Counties   Ry.   Co.    (1857),    (1   C.   B.   N.   S.   437), 

(26   L.  J.    C.   P.   91),    128,    144. 
Rasmussen  v.  Idaho  (181  U.  S.  198,  45  L.  Ed.  820,  21  Sup.  Ct.  594),  58. 
Rates  and  Rules  on  Shipments  of  Packing  House  Products   (36  I.  C. 

C.   62),   142. 
Rates  for  Transportation  of  Anthracite  Coal   (35  I.   C.  C.  220),  66. 
Rates  for  Transportation  of  Fresh   Meats   and   Packing  House   Pro- 
ducts (23  I.  C.  C.*652),  145. 


Lxxxvi  Tablk  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Rates  from  the  Walsenberg  Coal  Field  (26  I.  C.  C.  85),  145. 

Rates   on  Barley  from  Cal.   (24  I.   C.   C.  664),  398. 

Rates  on  Beer  and  Other  Malt  Products  (31  I.  C.  C.  544),  6,  44,  62, 

119,  254,  336,  398,  399. 
Rates  on  Car  Load  Stone  (29  I.  C.  C.  136),  223,  399. 
Rates  on  Cement  from  Md.  to  Va.   (24  I.  C.  C.  290),  398,  399. 
Rates    on    Corn    (25    I.    C.    C.    46),    399. 

Rates  on  Cotton  Seed  and  Its  Products  (28  I.  C.  C.  219),  401. 
Rates  on  Flax  Seed   (29  I.  C.  C.  633,  23  I.  C.  C.  272),  88,  95. 
Rates  on  High  Explosives  (33  I.  C.  C.  567),  335. 
Rates  on  Lumber  and  Other  Forest  Products   (30  L  C.   C.  371),  397, 

398,  400. 
Rates  on  Lumber  by  V.  S.  &  P.  R.  Co.  (21  L  C.  C.  16),  398. 
Rates  for  Transportation  of  Locomotives  (21  L  C.  C.  103),  399. 
Rates   on   Live   Poultry   (32   L   C.   C.   380),   119,   259,   336,  398. 
Rates  on  Meats  (23  L  C.  C.  656),  401. 
Rates  on  Tropical. Fruits  (30  L  C.  C.  621),  348. 
Rates  on  Sugar  (31  L  C.  C.  495),  348. 
Rates  on  Slag  (34  L  C.  C.  337),  358. 

Ratican  v.  Terminal   R.  Asso.    (114  Fed.   666),  218,  383. 
Raworth  v.  Northern  Pac.  R.  Co.  (5  L  C.  C.  234,  3  L  C.  R.  857),  335, 

348. 
Rawson  v.  Newport  News  &  M.  V.  R.  Co.  (3  L  C.  C.  266,  2  L  C.  R. 

626),  206,  383,  406. 
Raymond  v.  Chicago,  M.  &  St.  P.  Ry.  Co.   (1  L  C.  C.  230,  1  L  C.  R. 

627),   339,   345,   346. 
Rayner  v.  L.  &  N.  R.  Co.  (33  L  C.  C.  595),  383. 
Re  Advances  on  Coal  to  Lake  Ports   (22  L  C.  C.  604),  81. 
Re  Advances  Class  &  Commodity  Rates  (25  L  C.  C.  401),  398. 
Re  Advances  Class  Rates  (25  L  C.  C.  268),  398. 
Re  Advances  on  Crushed  Stone   (29  L  C.  C.  136),  223. 
Re  Advances  on   Furniture   (25   L   C.  C.  299),  398. 
Re  Advances   On   Hay   (25   L   C.   C.   680),  378,   393. 
Re  Advances  on  Hops  (25  L  C.  C.  16),  398. 

Re  Advances  on  Knitting  Factory  Products  (25  L  C.  C.  634),  398. 
Re  Advances  on  Live  Stock  (25  I.  C.  C.  63),  398. 
Re  Advances  on  Lumber  (21  L  C.  C.  455),  258,  399. 
Re  Advances  on  Manganese  Ore  (25  L  C.  C.  663),  138,  398. 
Re  Advances  on  Oil  (25  L  C.  C.  349),  398. 
Re  Advances  in  Rates  on  Potatoes  (23  L  C.  C.  69),  399. 
Re  Advances  in  Rates  on  Potatoes  (25  L  C.  C.  159),  175. 
Re  Advances  in  Rates  between  Miss.  &  Mo.  River   (21   L   C.   C.   546), 

207. 
Re  Advances  in  Rates  on  Soft  Coal  (23  L  C.  C.  518),  258,  399. 
Re  Alleged  Disturbance  in  Passenger  Rates  by  Canadian  Pacific  Ry. 

Co.   (8  L   C.   C.  71),  348. 


Table  of  Cases  Cited.  lxxxvii 

[  References  are  to  Sections.  ] 

Re  Alleged   Excessive  Rates  on   Food   Products    (4   I.   C.   C.  48,   116, 

3  I.  C.  R.  93,  151),  82,  85,  88,  90,  101,  339,  392. 
Re  Alleged   Unlawful    Charges   for  Transportation    of  Vegetables    (8 

I.  C.  C.  585),  358. 
Re   Alleged   Unlawful   Charges    for  Transportation    of   Coal    (5    I.    C. 

C.    466,    4    I.    C.    R.    157),    345. 
Re  Alleged  Unlawful  Discrimination  against   Enterprise  Transporta- 
tion  Co.   (11  I.  C.   C.  587),  397. 
Re  Alleged  Unlawful  Rates  and  Practices   (7  I.  C.   C.  240),  67,  165. 
Re  Alleged  Unlawful  Rates  and  Practices  in  Transportation  of  Coal 

(10   I.    C.    C.   473),   358. 
Re  Alleged  Unlawful  Rates  and  Practices  in  Transportation  of  Cot- 
ton  (8  I.   C.   C.   121),  335. 
Re  Alleged  Unlawful  Rates  and  Practices  in  Transportation  of  Grain 

(7   I.   C.   C.   33),   164,  345. 
Re  Alleged  Unlawful  Rates  and  Practices  in  Transportation  of  Grain 

and  Grain  Products   (7  I.  C.  C.  240),  345,  358. 
Re  Alleged  Violations  of  the  Act  by  the  St.  Louis  &  S.  F.  Ry.   Co. 

(8  I.  C.  C.  290),  335,  346,  348. 
Re  Alleged  Violation  of  Fourth  Section  (7  I.  C.  C.  61),  348. 
Re  Allowances   (12  I.  C.  C.  85),  197,  404. 
Re  Allowances  for  Transfer  of  Sugar  (14  I.  C.  C.  619),  140. 
Re  Allowances   to    Elevators   by  Union   Pacific   R.    Co.    (10    I.    C.    C. 

309),    197. 
Re   Allowances   to    Elevators   by  Union    Pacific   R.    Co.    (12    I.    C.    C. 

85),   197,   395,   416. 
Re  Allowances  to  Elevators  by  Union  Pacific  R.  Co.  (13  I.  C.  C.  498), 

416. 
Re  Allowances   to    Elevators   by  Union   Pacific    R.    Co.    (14    I.    C.    C. 

315),    168,    337. 
Re  Amsterdam    (33   N.  Y.   Supp.   1009),  49. 

Re  Application  of  Atchison,  T.  &  S.  F.  Ry.  Co.  (7  I.  C.  C.  593),  348. 
Re  Application  of  F.  W.  Clark  (3  I.  C.   C.  649,  2  I.  C.  R.  797),  397. 
Re  Application  of  Fremont,  E.  &  M.  V.  R.  Co.,  et  al.  (6  I.  C.  C.  293),. 

348. 
Re  Application  of  Rome,  W.  &  O.  R.  Co.  (6  I.  C.  C.  328),  348. 
Re  Application  of  Southern  Pacific  4th  Sec.  (22  I.  C.  C.  366),  244. 
Re  Arkansas  Rates  (163  Fed.  141,  187  Fed.  290),  49. 
Re  Atlanta  &  West  Point  R.  Co.  (3  I.  C.  C.  19,  46,  2  I.  C.  R.  461), 

348,   358. 
Re  Belknap   (96  Fed.  614),  386. 
Re  Bills  of  Lading  (14  L  C.  C.  346),  252. 
Re  Bills  of  Lading  (29  L  C.  C.  417),  36.  252. 
Re  Carriage  of  Persons  Free  (5  L  C.  C.  69,  3  L  C.  R.  613,  717),  342, 

345,    442. 
Re   Charge   to    Grand  Jury    (66   Fed.   146),   345,  346,  442. 
Re   Charge  to   Grand  Jury   (151   Fed.  834),  486. 


Lxxxviii  Table  of  Case:s  Cited. 

[  References  are  to  Sections.  ] 

Re  Charges  for  Transportation  and  Refrigeration  of  Fruit  (10  I.  C.  C. 

360),  358. 
Re  Charges  for  Transportation  and  Refrigeration  of  Fruit   (11  I.  C 

C.    129),    80,    335,    358. 
Re  Chicago,  St.  P.  &  K.  C.  Ry.  Co.   (2  I.  C.  C.  231,  2  I.  C.  R.  137), 

339. 
Re  Class  and  Commodity  Rates  from  St.  Louis  to  Texas  (11  I.  C.  C. 

238),  83,  92,  96,  100,  103,  339,  486. 
Re   Classification  of  Atlanta   &  West  Point   R.  Co.   (3   I.   C.   C.   19,  2 

I.  C.   R.  461),  348,  358. 
Re  Coal  Rates  on  Stony  Fork  Branch   (26  I.  C.  C.  168),  151,  175. 
Re  Commutation  Tickets  to  School  Children  (27  I.  C.  C.  144),  138. 
Re  Complaint  of  Illinois  Central  R.  Co.  (12  I.  C.  C.  7),  342,  442. 
Re   Contracts  of  Express   Companies   (16   I.   C.   C.   246),  342. 
Re  Contracts  for  Free  Transportation   (16  I.  C.  C.  246),  342,  358. 
Re  Corning  (51  Fed.  205,  1  Fed.  Anti-Trust  Dec.  33),  487. 
Re  Debs   (158  U.  S.  568  U.  S.  564,  39  L.  Ed.  1092,  15  Sup.   Ct.  900,  1 

Fed.   Anti-Trust   Dec.    565),    486. 
Re  Deininger  (108  Fed.  623),  58. 
Re  Demurrage  Investigation   (19  I.  C.  C.  496),  25. 
Re    Differential    Freight   Rates   To    and    From    North   Atlantic    Ports 

(11   I.   C.   C.   13),   346. 
Re  Divisions  of  Joint  Rates  and  Other  Allowances  to  Terminal  Roads 

(10  I.  C.  C.  385),  345. 
Re   Elevation   Allowances    (24   I.   C.   C.   197),   337. 
Re  Exchange  of  Free  Transportation   (12  I.  C.  C.  39).  335,  342. 
Re  Export  and  Domestic  Rates  on  Grain  (8  I.  C.  C.  214),  358. 
Re   Export  Rates   from   Points   East  and  West  of  Mississippi   River 

(8  I.   C.   C.   185),  358. 
Re  Export  Rates  of  Flax  Seed  Products  (27  I.  C.  C.  246),  99. 
Re  Express  Companies  (1  I.  C.  C.  349,  1  I.  C.  R.  677),  335,  337,  357. 
Re   Filing  Copies   of  Joint  Tariffs  by  Traffic   Combinations    (1   I.   C. 

C.  76),  358. 
Re  Filing  of  Joint  Tariffs   (1  I.  C.   C.  657,  2  I.  C.  R.  9),  358. 
Re  Form  and  Contents  of  Rate  Schedules  (6  I.  C.  C.  267,  4  I.  C.  R. 

698),   358,   366. 
Re  Free  Transportation  of  Newspaper  Employees    (12  I.   C.   C.   15), 

342,  442. 
Re  Freight  Bills   (29  I.  C.  C.  496),  403. 
Re  Freight  Rates   Between  Memphis  and  Points   in  Arkansas    (11   I. 

C.   C.  180).  346,  392. 
Re    Grand   Jury    (62    Fed.    Anti-Trust    Dec.    301),    486. 
Re  Greene  (52  Fed.  104,  1  Fed.  Anti-Trust  Dec.  54),  487. 
Re  Gregory  (219  U.  S.  210,  55  L.  Ed.  184,  31  Sup.  Ct.  143),  58. 
Re  Hale  (139  Fed.  496,  2  Fed.  Anti-Trust  Dec.  804),  486. 
Re  Hohorst   (150  U.  S.  653,  37  L.   Ed.  1211,  14  Sup.  Ct.  221),  307. 
Re  Huntington   (68  Fed.  881),  346. 


Table  of  Cases  Cited.  exxxix 

[  References  are  to  Sections.  ] 

Re   Indian   Supplies   (1   I.   C.   C.   15,   1   I.   C.   R.   22),  442. 

Re  Investigation  of  Acts  of  Grand  Trunk  Ry.  of  Canada  (3  I.  C.  C. 

89,  2  I.   C.  R.  496),  65,  335,  358,  392. 
Re  Investigation  of  Advances  on  Transportation  of  Locomotives  and 

Tenders  (21  I.  C.  C.  103),  127. 
Re  Interstate  Commerce  Commission.     Application  for  Order  Against 

Brimson,  et  al.   (53  Fed.  476),  389,  390. 
Re  Issuance  and  Use  of  Passes  (26  I.  C.  C.  491,  29  I.  C.  C.  411),  182. 
Re   Joint   Rates   with   The    Birmingham    Southern    (32    I.    C.    C.    110), 

171. 
Re  Jurisdiction  in  Alaska  (19  I.  C.  C.  81),  335. 

Re  Jurisdiction  Over  Water  Carriers  (15  I.  C.  C.  205),  69,  335. 
Re  Louisville  &  N.  R.  Co.  (1  I.  C.  C.  84,  1  I.  C.  R.  287),  108,  199. 
Re  Louisville  Underwriters  (134  U.  S.  488,  33  L-  Ed.  991,  10  Sup.  Ct. 

587),  307. 
Re  Lumber  Rates  (21  I.  C.  C.  455),  399. 

Re  Lumber  Rates  to  Ohio  River  Crossings   (25  I.  C.  C.  50),  244. 
Re  Mileage  Books   (28  I.  C.   C.  318),  442. 
Re  Mileage    Excursion    and    Commutation    Tickets    (23    I.    C.    C.  95), 

442. 
Re  Party  Rate  Tickets   (12  I.  C.  C.  95),  345,  444. 
Re  Through  Passenger  Routes  via  Portland  (16  I.  C.  C.  300),  120. 
Re  Passenger  Tariffs  (2  I.  C.  C.  649,  2  I.  C.  R.  445),  345,  358,  361,  444. 
Re  Passenger  Tariffs  and  Rate  Wars  (2  I.  C.  C.  513,  2  I.  C.  R.  340), 

358,  361. 
Re  Passes  to  Clergymen   (15  I.  C.  C.  45),  342. 
Re  Peasley   (44  Fed.   271),  384,  390. 
Re  Petition  of  Cincinnati,  H.  &  D.  R.  Co.  for  Relief  Under  Section 

Four   (6  I.   C.   C.  323),  348. 
Re  Petition  of  Louisville  &  N.  R.  Co.  and  Southern  Ry.  &  S.  S.  Co. 

(1   I.   C.   C.   57.   1    I.    C.   R.   278),   152,   339,   348. 
Re  Petition  of  Order  of  Railway   Conductors    (1   I.   C.   C.   8,   1  I.   C. 

R.   18),   392. 
Re  Petition  of  Produce  Exchange  (2  I.  C.  C.  588,  2  I.  C.  R.  412),  263, 

392,  416. 
Re  Pig  Iron  Rates  from  Va.  (27  I.  C.  C.  343),  245. 
Re  Pipe  Lines  (24  I.  C.  C.  1),  335,  381. 
Re   Pooling  Freights    (115   Fed.   588),   352,   384. 
Re  Powers  and   Procedure  of  the   Commission    (1   I.   C.    C.  223,   1   I. 

C.   R.  408),  392. 
Re  Practices  Governing  Sale  of  Mileage  Books  (28  I.  C.  C.  318),  38. 
Re  Precooling  and   Preicing   (23   I.   C.    C.   267),  222,   398. 
Re   Proposed  Advance   in   Freight   Rates    (9   I.   C.   C.   382),   82,   85,  99, 

100,    339. 
Re  Publication  of  Joint  Tariffs  (1  I.  C.  R.  598),  358. 
Re  Railroad-Telegraph   Contracts    (12   I.   C.   C.   10),   342,  442. 
Re  Rate  Sheets  (1  I.  C.  R.  316),  358. 


xc  Table;  of  Casfs  Cited. 

[  References  are  to  Sections.  ] 

Re  Rates  and  Practices  of  the  Mobile  &  Ohio  R.  Co.  (9  I.  C.  C.  373), 

345. 
Re  Rates  on  Corn  and  Corn  Products  (11  I.  C.  C.  212,  220),  346. 
Re  Rates  on  Crushed  Stone  (29  I.  C.  C.  136),  223. 
Re  Rates  on  Crushed  Stone  (24  I.  C.  C.  192),  244. 
Re   Rates  on   R.   R.   Fuel  and  Other  Coal    (36   I.   C.   C.   1),  89. 
Re  Rates  on  Salt   (24  I.  C.  C.  192),  348. 
Re  Reduced  Rates  on  Returned  Shipments    (19   I.  C.   C.  409),  88,  90, 

123,    345. 
Re  Relative  Tank  &  Barrel  Rates  (2  I.  C.  C.  365,  2  I.  C.  R.  245),  392. 
Re  Released  Rates   (13   I.   C.  C.  550),  34,  88,  90,  339,   358,  439. 
Re  Religious  Teachers  (1  I.  C.  R.  21),  346. 
Re  Restricted  Rates  (20  I.  C.  C.  426),  89,  137,  185,  346. 
Re  Right  of  Railroad   Companies   to   Exchange   Free  Transportation 

with  Local  Transfer  Companies   (12   I.   C.   C.  39),  337,  442. 
Re  Substitution  of  Tonnage  in  Transit  Points   (18  I.  C.  C.  280),  164. 
Re  Southern  Pacific  Co.  (155  Fed.  1001),  333. 
Re  Southern   Pacific   Co.    (1   I.   C.   R.  16),   199. 
Re  Southern   Ry.  &  S.  S.  Asso.   (Re  Petition   of  Louisville   &  N.  R. 

Co.),  (1  I.  C.  C.  31,  1  I.  C.  R.  278),  199. 
Re  Suspension  of  Western  Classification,  See  Western  Classification. 
Re  Tariflfs  and  Classification  of  Atlanta  &  West  Point  R.   Co.   (3   L 

C.    C.    19,   24,   2   L    C.    R.    461),    108,    348,    358. 
Re  Tariflfs  of  Transcontinental  Lines  (2  L  C.  C.  324,  2  I.  C.  R.  203), 

110,   346,   358. 
Re  Tariffs  on  Export  and  Import  Traffic   (10  I.  C.  C.  55).  35. 
Re  Terrell   (51   Fed.  213,   1   Fed.  Anti-Trust  Dec.  46),  487. 
Re  Through  Passenger  Routes  via  Portland  (16  I.  C.  C.  300),  120. 
Re  Through  Routes  and  Through  Rates  (12  L  C.  C.  163),  338,  358,  361. 
Re  Transportation  of  Fruit  (10  I.  C.  C.  360),  197. 
Re  Transportation  of  Immigrants   (10  I.  C.  C.  13),  352. 
Re  Transportation  of  Lime   (24  I.  C.  C.  170),  244. 
Re  Transportation  of  Newspaper  Employees  (12  I.  C.  C.  15),  342. 
Re  Transportation  of  Salt   (10  I.   C.   C.  148),  345. 

Re  Transportation  of  Wool,  Hides  and  Pelts   (23   I.   C.   C.  151),  244. 
Re  Underbilling    (1   I.   C.    C.   633,   1   I.    C.   R.   813),   385. 
Re   Unlawful    Charges    for   Transportation    of    Coal    by    Louisville    & 

N.    R.    Co.    (5   I.    C.    C.   466.   4    I.    C.    R.    157).    345. 
Re  Unlawful  Rates  and  Practices    (7   I.   C.   C.  240),  67. 
Re  Unlawful  Rates  in  the  Transportation  of  Cotton  (S  I.  C.  C.  121), 

163. 
Re  Wharf  Facilities  Pensacola.  Fla.   (27  I.  C.  C.  252),  241,  243. 
Re  Wharfage  Charges  at  Galveston  (23  I.  C.  C.  535),  196. 
Re  When  a  Cause  of  Action  Accrues  (15  I.  C.  C.  201),  218,  408. 
Re  Wichita  Falls  System  Joint  Coal  Rates  (26  I.  C.  C.  215),  145. 
Re  Winn   (213  U.  S.  458.  53  L.  Ed'.  873,  29  Sup.   Ct.  515),  292. 
Re  Wool  Hides  &  Pelts   (25  I.  C.  C.  675),  207. 


Table  of  Cases  Citfd.  xci 

[  References  are  to  Sections.  ] 

Rea  V.  Mobile  &  O.  R.  Co.  (7  I.  C.  C.  43),  105,  358,  383. 

Reagan   v.    Farmers'   Loan    &   Trust    Co.    (154   U.    S.    362,   38    L.    Ed. 

1014,  4  I.  C.  R.  560,  14  Sup.  Ct.  1047),  45,  49.  60,  63,  84. 
Rearick  v.    Pennsylvania    (203   U.    S.   507,   51    L.    Ed.   295,   27   Sup.   Ct. 

159),    58. 
Receivers'   &  Shippers'  Asso.   of  Cincinnati  v.   C.   N.   O.   &  T.   P.   R. 

Co.   (18  I.  C.   C.  440),  266. 
Red  "C"  Oil  Co.  v.  North  Carolina  (222  U.  S.  380,  56  L.  Ed.  240,  32 

Sup.   Ct.  152,  172  Fed.  695),  58. 
Red  Rock  Fuel  Co.  v.  Baltimore  &  O.  R.  Co.  (11  I.  C.  C.  438),  344. 
Reduced  Rates  on  Returned  Shipments   (19  I.  C.  C.  409).  88,  90,  123, 

345. 
Red  Wing  Linseed  Co.  v.  Chicago,  M.  &  St.  P.  R.   Co.    (15   L   C.  C. 

47),    309. 
Reeser  v.  Philadelphia  &  R.  Ry.  Co.  (215  Pa.  136,  64  Atl.  376),  13. 
Reeves  v.  Tex.  &  P.  R.  Co.  (32  S.  W.  920),  32. 
Regulations  Restricting  the  Dimensions  of  Baggage  (26  L  C.  C.  292), 

341,  358. 
Reid  V.   Colorado   (187  U.  S.  137,  47  L.  Ed.  108,  23  Sup.   Ct.  92),   58. 
Rend  v.  Chicago  &  N.  W.  R.   Co.    (2   L   C.   C.  540,  1   L   C.  R.  793,  2 

I.    C.    R.    313),    345. 
Reno  Grocery  Co.  v.  S.  P.   Co.   (23   L   C.   C.  400),  254. 
Reynolds  v.  Southern  Ex.  Co.  (13  L  C.  C.  536),  346. 
Reynolds  v.  Western  N.  Y.  &  P.  R.   Co.   (1  L   C.   C.  393,  1  L  C.  R. 

685),   339. 
Rhinelander  Paper  Co.  v.  Northern  Pac.  R.  Co.  (13  L  C.  C.  633),  346. 
Rhodes  v.  Iowa  (170  U.  S.  412,  42  L.  R.  A.  1088,  18  Sup.  Ct.  664),  58. 
Rice  V.  Atchison,  T.  &  S.  F.  R.  Co.  (4  L  C.  C.  228,  3  L  C.  R.  263),  348. 
Rice  V.  Cincinnati,  W.  &  B.  R.  Co.  (5  L  C.  C.  193,  3  L  C.  R.  841),  345, 

346. 
Rice  V.  Cincinnati,  W.  &  B.  R.  Co.  (3  L  C.  C.  186,  2  L  C.  R.  584),  389. 
Rice  V.  L.  &  N.  R.  Co.   (1  L   C.  C.  503,  1  L  C.  R.  354),  345. 
Rice    V.    Standard    Oil    Co.    (134    Fed.    464,    2    Fed.    Anti-Trust    Dec. 

633),   492. 
Rice  V.  Western  N.  Y.  &  P.  R.   Co.   (1  L   C.   C.  503.  1   L  C.  R.  354, 

376,   443,   722),   345. 
Rice  V.  Western  N.  Y.  &  P.  R.  Co.   (2  L  C.  C.  389,  2  L   C.  R.  298), 

339,   345,   346,   416. 
Rice  V.  Western  N.  Y.  &  P.  R.  Co.   (4  L  C.  C.  131,  3  L  C.  R.  162), 

345,    346. 
Rice  V.  Western  N.  Y.  &  P.  R.  Co.  (6  L  C.  C.  455),  346.  383,  392,  416. 
Richmond   &  A.   R.    Co.  v.   Patterson    (169  U.   S.   311,  42   L.   Ed.  759, 

18   Sup.   Ct.  335),  3".. 
Richmond  Chamber  of  Commerce  v.  S.  A.  L.  R.  Co.  (30  L  C.  C.  552), 

345,  346. 
Richmond  Elevator  Co.  v.  Pere  Marquette  R.  Co.   (10  L   C.   C.  629), 

175,   383. 


xcii  Table;  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Richmond,    F.    &   P.   R.    Co.   v.   Richmond    (96   U.   S.    521,   2-4   L.   Ed. 

734),   20. 
Rickards  v.  A.  C.  L.  R.  Co.  (23  I.  C.  C.  239),  116. 
Riddle,  Dean  &  Co.  v.  Baltimore  &  O.  R.  Co.  (1  I.  C.  C.  372,  1  I.  C. 

R.   701),   206,   263,   392. 
Riddle,  Dean  &  Co.  v.  New  York,  L.  E.  &  W.  R.  Co.  (1  I.  C.  C.  594, 

1  I.   C.  R.  787),  206,  383,  406. 
Riddle,  Dean  &  Co.  v.  Pittsburgh  &  L.  E.  R.  Co.  (1  I.  C.  C.  490,  1  I. 

C.   R.   773),   263,   392,  416. 
Ridgewood  Coal  Co.  v.  L.  V.  R.  Co.  (21  I.  C.  C.  183).  192. 
Riter  v.  O.  S.  L.  R.  Co.  (19  I.  C.  C.  443),  353. 

Riverside  Mills  v.  Atlantic  C.  L.  R.  Co.  (168  Fed.  987).  14,  295,  439. 
Riverside  Mills  v.  Ga.  R.  Co.   (20  I.  C.   C.  423).  408. 
Riverside  Mills  v.  Southern  Ry.  Co.  (12  I.  C.  C.  388),  339. 
Robb  V.  Connally  (111  U.  S.  624,  28  L.  Ed.  542,  4  Sup.  Ct.  544).  295. 
Roberts  Cotton  Oil  Co.  v.  I.  C.  R.  Co.  (21  I.  C.  C.  248),  107. 
Robert  W.  Parson,  The  (191  U.  S.  17,  48  L.  Ed.  73,  24  Sup.  Ct.  8),  55. 
Robinson  v.  A.  T.  &  S.  F.  R.  Co.  (36  Ok.  435,  129  Pac.  20),  439. 
Robinson  v.  B.   &  O.  R.   Co.   (64  W.  Va.  406,  63  S.   E.  323),  208,  230, 

249,    405,    443. 
Robinson  v.  B.  &  O.  R.  Co.   (222  U.  S.  506,  56  L.  Ed.  288,  32  Sup.  Ct. 

114),  145,  208,  230,  294,  317,  383,  405,  443. 
Robinson  v.  Suburban  Brick  Co.    (127  Fed.  804).  62   C.   C.  A.  484,  2 

Fed.  Anti-Trust  Dec.  312),  486. 
Robinson  Land  &  Lumber  Co.  v.  M.  &  O.  R.  Co.   (26  L  C.  C.  427), 

105. 
Rock  Hill  Buggy  Co.  v.  Southern  Ry.  Co.  (11  L  C.  C.  229),  348. 
Rock  Spring  Distilling  Co.  v.   I.   C.  R.   Co.    (27   I.   C.   C.  54),  99. 
Rogers  &  Co.  v.  Philadelphia  &  R.  R.  Co.  (12  I    C.  C.  308),  383. 
Rollins  V.  S.  A.  L.  R.  R.  Co.  (146  N.  C.  218,  59  S.  E.  671),  25. 
Rosenblatt  v.   C.  &  N.  W.  R.  Co.   (18  L   C.  C.  261),  213. 
Roswell  Commercial  Club  v.  Atchison,  T.  &  F.  Ry.  Co.  (12  I.  C.  C. 

339),   339. 
Roth  V.  Texas  &  Pacific  Ry.  Co.  (9  L  C.  C.  602),  392. 
Royal  Brewing  Co.  v.  Adams  Ex.  Co.   (15  I.   C.  C.  255),  346. 
Royal  C.  &  C.  Co.  v.  Southern  Ry.  Co.  (13  L  C.  C.  440),  346. 
Rubber  Tire  Wheel   Co.  v.   Milwaukee   Rubber   Co.    (142  Fed.   531,  2 

Fed.  Anti-Trust  Dec.  855).   486. 
Rubber  Tire  Wheel  Co.  v.  Milwaukee  Rubber  Co.   (154  Fed.  358,  83 

C.    C.   A.   336),   486. 
Rules    and    Regulations    Governing    Checking    Baggage    (35    L    C.    C. 

157),  37,  38. 
Rules  Governing  Shipments  in  Peddler  Cars   (32  L  C.  C.  428),  142. 
Russe  &  Burges  v.  Int.  Com.  Com.   (193  Fed.  678),  207,  406,  407. 
Ruttle  V.  Pere   Marquette  R.   Co.    (13   L   C.   C.   179).  346. 


Table  of  Cases  Cited.  xciii 

[  References  are  to  Sections.  ] 


St.  Clair  Co.  v.  Int.  Transp.  Co.  (192  U.  S.  454,  48  L.  Ed.  518,  24  Sup. 

Ct.   300),   53. 
St.  Joseph   Stock  Yards   Co.  v.   United   States    (187   Fed.   104,   110   C. 

C.  A.  432),  481. 
St.  Louis  &  S.  F.  R.  Co.  v.  Allen   (181  Fed.  710).  39. 
St.  Louis  &  S.  F.  R.  Co.  V.  Gill   (156  U.  S  649,  39  L.  Ed.  567,  15  Sup. 

Ct.    484),    45,    49,    86,    87,    311. 
St.  Louis  &  S.  F.  R.  Co.  v.  Grayson  (89  Ark.  154,  115  S.  W.  933).  34. 
St.  Louis  &  S.  F.  R.  Co.  V.  Hadley  (168  Fed.  317,  155  Fed.  220),  49,  50. 
St.  Louis  &  S.  F.  R.  Co.  V.  McNamare  (91  Ark.  515,  122  S.  W.  102),  15. 
St.  Louis  &  S.  F.  R.  Co    V.  Newell  (25  Ok.  502,  106  Pac.  818),  30. 
St.  Louis  &  S.  F.  R.  Co.  V.  United  States   (169  Fed.  69,  94  C.   C.  A. 

437),  481. 
St.  Louis  &  St.  P.  R.  R.  Co.  V.  P.  &  P.  N.  Ry.  Co.  (26  I.  C.  C.  226),  400. 
St.  Louis  Drayage  Co.  v.  Louisville  &  N.  R.  Co.   (65  Fed.  39),  347. 
St.  Louis  Hay  &  Grain  Co.  v.  Chicago,  B.  &  Q.  R.  Co.   (11  L  C.  C. 

82),  82,  335. 
St.    Louis    Hay    &    Grain    Co.   v.    Illinois    Cent.    R.    Co.    (11    I.    C.    C. 

486),   345. 
St.  Louis  Hay  &  Grain  Co.  v.  M.  &  O.  R.  Co.  (11  I.  C.  C.  90),  163. 
St.  Louis  Hay  &  Grain  Co.  v.  Southern  Ry.   Co.   (149   Fed.   609),  345, 

346,    394. 
St.   Louis,    I.   M.    &   S.    R.    Co.  v.    Edwards    (94   Ark.   394,    127    S.   W. 

713),   3. 
St.   Louis,   I.   M.   &   S.   R.   Co.   V.   Edwards    (227   U.   S.   265,   57   L.   Ed. 

506,  33  Sup.  Ct.  262),  3,  9,  25. 
St.  Louis,  I.  M.  &  S.  R.  Co.  V.  Hampton  (162  Fed.  693),  26. 
St.  Louis,   I.   M.   &   S.   R.   Co.  V.   McXaniare    (91   Ark.   515,   122   S.  W. 

102),  15. 
St.  Louis,  I.  M.  &  S.  R.  Co.  V.  Southern  Express  Co.  Express  Cases 

(117   U.   S.   1,   29   L.   Ed.   791,   6  Sup.   Ct.   542),   327. 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  State  (31  Ok.  509,  122  Pac.  217),  9. 
St.  Louis,  I.  M.  &  S.  R.  Co.  V.  Taylor  (210  U.  S.  281,  52  L.  Ed.  1061, 

28  Sup.  Ct.  616),  54. 
St.  Louis,  I.  M.  &  S.  R.  Co.  V.  United  States    (217  Fed.  80),  121. 
St.  Louis,  I.  M.  &  S.  R.  Co.  V.  Wynne   (224  U.  S.  354,  56  L.   Ed.  799, 

32  Sup.    Ct.   493),   35. 

St.  Louis,  S.  &  P.  R.  Co.  V.  P.  &  P.  N.  R.  Co.  (26  I.  C.  C.  226),  150, 

151,  191,  338,  347,  381,  400. 
St.   Louis,  S.  W.   R.   Co.  v.  Alexander   (227  U.   S.  218,   57   L.   Ed.  486, 

33  Sup.   Ct.  245),  295. 

St.  Louis,  S.  W.  R.  Co.  V.  Arkansas  (217  U.  S.  136,  54  L.  Ed.  698,  30 

Sup.   Ct.   476),   25. 
St.  Louis,  S.  W.  R.  Co.  V.  Garden  (34  S.  W.  (Texas)   145),  204. 
St.  Louis,  S.  W.  R.  Co.  V.  Hadley  (155  Fed.  220),  50. 


xciv  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

St.    Louis,    S.   W.    R.    Co.   V.    Hill    &   Alorris    (97    Tex.    506,    80    S.   W. 

368),    25. 
St.   Louis,   S.  W.   R.    Co.  V.   Lewellen   Bros.    (192   Fed.   540),   180,   205, 

212. 
St.  Louis,  S.  W.  R.  Co.  v.  Samuels  &  Co.   (211  Fed.  588),  383,  407. 
St.  Louis,  S.  W.  R.  Co.  V.  State   (97  Ark.  473,  134  S.  W.  970),  9. 
St.  Louis  Terminal  Case  (34  L  C.  C.  453),  171. 
St.  P.  &  S.  Ste.  M.  R.  Co.  V.  R.  R.  Com.  of  Wis.   (136  Wis.  146,  IIG 

N.  W.  905),  49. 
Samuels  Co.  v.  St.  L.  &  W.  R.  Co.  (20  L  C.  C.  646),  383. 
Samuelson  v.  State   (116  Tenn.  470,  95  S.  W.  1012,  115  Am.  St.  Rep. 

805),   37. 
San   Bernardino  Board  of  Trade  v.   Atchison,  T.   &  S.   F.   R.   Co.    (4 

L    C.    C.    104,   3    L    C.    R.    138),   348,   350,   358. 
San   Diego   Land    &  Town    Co.   v.  Jasper    (189   U.    S.   439,   47   L.    Ed. 

892,   23   Sup.    Ct.   571),   45,   47,   84. 
San  Diego  Land  ,&  Town   Co.  v.   National   City    (74  Fed.   79),   84. 
San   Diego   Land   &  Town   Co.  v.   National   City    (174   U.    S.   739,   43 

L.    Ed.   1154,   19   Sup.   Ct.   804),  45,  47,  49,  88. 
Sands  v.   Manistee   R.    L    Co.    (123   U.   S.   288,   31   L.    Ed.   149,   8   Sup. 

Ct.    113),    56. 
Santa  Fe  P.  &  P.  R.  Co.  v.  Grant   Bros.  Construction   Co.   (13  Ariz. 

186,    108    Pac.    467),    358. 
Santa  Fe  P.  &  P.  R.  Co.  z'.  Grant  Bros.  Construction  Co.  (228  U.  S. 

177,  57  L.  Ed.  787,  33  Sup.  Ct.  474),  358. 
Sault  Ste.   Marie  v.   International  Transit   Co.    (234   U.   S.   333,   58   L. 

Ed.  1337,  34  Sup.   Ct.  826),  53. 
Savage  v.  Jones   (225  U.   S.  501,  56  L.  Ed.   1182,  32   Sup.   Ct.  715),  58. 
Savannah  Bureau  of  Freight  &  Transportation  v.  Charleston  &  S.  R. 

Co.    (7  L   C.   C.   458),  348. 
Savannah    Bureau   of    Freight    &   Transportation   v.    Charleston    &   S. 

R.   Co.    (7   L    C.   C.   601).  339. 
Savannah    Bureau    of    Freight    &    Transportation    v.    Louisville    &    N. 

R.   Co.    (8   L   C.   C.   377).   346. 
Savannah  F.  &  W.  R.  Co.  v.  Florida  Fruit  Exchange   (167  U.  S.  512, 

42  L.  Ed.  257,  17  Sup.  Ct.  998),  335. 
Savery  v.  New  York  C.  &  H.  R.  R.  Co.  (2  L  C.  C.  338,  1  L  C.  R.  695, 

2  L  C.  R.  210),  345. 
Sawyer  v.  Davis   (136  Mass.  239,  49  Am.   Rep.   27).   309. 
Schlemmer  v.   Buffalo,   R.   &  P.   R.   Co.    (205  U.   S.   1.   51   L.   Ed.  681, 

27  Sup.   Ct.   407),  330. 
Schultz-Hansen  Co.  v.  Southern  Pac.  Co.  (18  L  C.  C.  234),  111,  358. 
Schulz  V.  Parker   (158   Iowa  42,  139  N.  W.   173),  38. 
Schumacher  Milling  Co.  v.   Chicago.  R.  I.   &  P.   Ry.   Co.   (6  I.  C.   C. 

61,    4    I.    C.    R.    373),    85,    339,    392. 
Schutte  V.  Weir   (111  N.  Y.  Sup.  240,  59  Misc.   Rep.  438).  439. 
Sclnvager  &  Nettleton  v.  Great  Nor.  Ry.  Co.  (12  I.  C.  C.  521),  358. 


Table  of  Cases  Cited.  xcv 

[  References  are  to   Sections.  ] 

Schweig  V.  Chicago  M.  &  St.  P.  Ry.  Co.  (205  Fed.  96),  331. 

Scofield  V.  Lake  Shore  &  M.  S.  R.  Co.  (3  I.  C.  C.  90,  2  I.  C.  R.  67), 

156,    345,    346. 
Scofield  V.  Lake  Shore  &  M.  S.  R.  Co.  (43  Ohio  St.  571,  3  N.  E.  907, 

54   Am.   Rep.   846),   304. 
Scott  V.  Donald   (165  U.  S.  58,  41  L.   Ed.  632,  17   Sup.   Ct.  265),  58. 
Scott-Meyer  Com.  Co.  v.  C.  R.  L  &  P.  Co.  (2S  L  C.  C.  529),  118. 
Scott  Paper  Co.  v.  P.  R.  Co.   (26  1.   C.  C.  601),  145. 
Scranton  v.  Wheeler  (179  U.  S.  141,  45  L.  Ed.  126,  21  Sup.  Ct.  48),  58. 
Scrap  Iron  Rates    (28   L      C.   C.   525),   88. 

Seaboard  A.  L.  R.  Co.  v.  Davis   (139  Ga.  547,  77  S.  E.  795),  32. 
Seaboard  A.  L.  R.   Co.  v.   Florida   (203  U.   S.  261,  51   L.   Ed.   175,  27 

Sup.   Ct.   109),   130. 
Seaboard  A.  L.  R.  Co.  v.  R.  R.  Com.  of  Ga.  (206  Fed.  181),  13,  14,  453. 
Seaboard  A.  L.  R.  Co.  v.  R.  R.  Com  of  Ga.  (213  Fed.  27),  320,  453. 
Seaboard  A.  L.  R.  Co.  v.  Seegers  (73  S.  C.  71,  52  S.  E.  797).  35. 
Seaboard  A.   L.   R.   Co.  v.   Seegers    (207  U.   S.   73,   52   L.    Ed.   108,  28 

Sup.   Ct.   28),   35. 
Seattle  Chamber  of  Commerce  v.  G.  N.  R.  Co.  (30  L  C.  C.  683),  347. 
Seibels  v.  N.  P.  R.  Co.   (80  S.  C.  133,  61  S.  E.  435),  42. 
Selkirk  v.  Stevens  (72  Minn.  336,  75  N.  W.  386,  40  L.  R.  A.  760),  59. 
Separation   of  Operating  Expenses    (30   L   C.   C.   676),   27,   49,   85,   432, 

433. 
Serry  v.  S.   P.   Co.   (18   L   C.   C.   554),   118. 
Shawnee   Compress    Co.  v.  Anderson    (209  U.   S.  423,   52   L.   Ed.   865, 

28   Sup.   Ct.   572),   486. 
Sheldon  v.   Wabash   R.   Co.    (105   Fed.   785),   294. 
Shepard  v.   N.   P.   R.   Co.    (184  Fed.  765),  47.  49,  50. 
Shiel  &  Co.  V.  111.  Cent.  R.  Co.  (12  I.  C.  C.  210),  206,  358,  383. 
Shinkle,   etc.,  v.  Louisville   &  N.   R.   Co.   (62   Fed.   690),  406. 
Shippers'  &  Receivers'  Bureau  of  New^ark  v.  New  York,  O.  &  W.  R. 

Co.    (15    I.    C.    C.    264),    339. 
Shoecraft  &  Sons  Co.  v.  I.  C.   R.  Co.   (19  I.  C.  C.  492),  406,  408. 
Shoemaker  v.  Chesapeake  &  P.  T,el.  Co.   (20  I.  C.   C.  614),  2,  28,  335, 

346. 
Shore  &  Bro.  v.  B.  &  O.  R.  Co.  (76  S.  C.  472,  57  S.  E.  526).  42. 
Silverman  &  Weir  (114  N.  Y.  Supp.  6),  439. 

Silz  V.  Hesterberg  (211  U.  S.  31,  53  L.  Ed.  75,  29  Sup.  Ct.  10),  58. 
Simpson  v.  Shepard   (230  U.  S.  352,  57  L.   Ed.  1511.  33  Sup.  Ct.  729), 

2,  3,  4,  9,  11,  16,  17,  18,  29,  33,  34,  42,  43,  45,  47,  52,  54,  55,  56.  58, 

59,  61,   64,   69,   84,   125,   145. 
Sinclair  v.  C.  M.  &  St.  P.  R.  Co.   (21  I.   C.   C.  490),  91,  253. 
Sinking  Fund  cases    (U.   P.   R.   Co.  v.  U.   S.)    (99  U.   S.  9   Otto.   700, 

25   L.   Ed.   496),  -63. 
Sinnot  V.  Davenport  (22  How.  63  U.  S.  227.  16  L.  Ed.  243),  56. 
Sioux  City  Terminal  Tel.  Co.  v.  C.  M.  &  St.  P.  R.  Co.   (27  I.   C.  C. 

457),    109. 


xcvi  Table  of  Cases  Cited. 

[  References  are  to  Sections.  ] 

Slater  v.  Northern  Pac.   R.   Co.   (2  I.   C.   C.  359,  2  I.  C.  R.  243),  342, 

384,   442. 
Sligh  V.  Kirkwood   (237  U.  S.  52,  59  L.  Ed.  — ,  35  Sup.  Ct.  501),  58. 
Slight  V.  Florida  (237  U.  S.  52.  59  L.  Ed.  — ,  35  Sup.  Ct.  501),  58. 
Sligo  Iron  Stove  Co.  v.  A.  T.  &  S.  F.  Ry.  Co.  (17  I.  C.  C.  139),  90. 
Sligo  Iron  Stove   Co.  v.  U.  P.  R.  Co.   (19  I.   C.   C.  527),  90. 
Smeltzer  v.  St.  Louis  &  S.  F.  R.  Co.  (158  Fed.  649),  439. 
Smith   V.   Alabama    (124   U.    S.   465,   31   L.    Ed.   508,   8   Sup.    Ct.   564,   1 

I.  C.  R.  804),  3,  22. 
Smith  V.  Northern  Pac.  R.  Co.  (1  I.  C.  C.  208,  1  I.  C.  R.  611),  345. 
Smith  V.  Texas  (233  U.  S.  630,  146  S.  W.  900,  58  L.   Ed.  1129,  34  Sup. 

Ct.  681,  63  Tex.  Cr.  App.  183),  22. 
Smyth  V.  Ames   (169   U.   S.   466,  42   L.   Ed.   819,   18   Sup.   Ct.   418),  45, 

47,    49,    82,    88,    123,    231. 
Snyder-Malone-Donahue  Co.  v.  Chicago,  B.  &  Q.  R.  Co.  (18  I.  C.  C. 

498),  110. 
Society   of  American    Florists   v.   United    States    Express    Co.    (12    I. 

C.    C.    120),   88,   339. 
Solvay  Process  Co.  v.  D.  L.  &  W.  R.  Co.  (14  I.  C.  C.  246),  171. 
Sondheimer  v.  I.   C.  R.  Co.   (20  I.  C.  C.  606),  213,  408. 
South   Covington   Ry.  v.   Covington    (235  U.   S.   537,   59   L.   Ed.  — ,   35 

Sup.    Ct.    158),   3,   66,   331. 
Southern  Bitulithic  Co.  v.  I.  C.  R.  Co.   (17  I.  C.  C.  300),  146. 
Southern  Cal.  Sugar  Co.  v.  S.  P.  L.  A.  &  R.  Co  (19  I.  C.  C.  6),  195. 
Southern  Cotton  Oil  Co.  v.  S.  R.  Co.  (19  I.  C.  C.  79),  90. 
Southern  Ex.  Co.  v.  Long  (202  Fed.  462,  120  C.  C.  A.  568),  443. 
Southern   Ex.    Co.   v.   St.   Louis,    I.   M.    &   S.   R.    Co.    (10   Fed.   210,   3 

McCrary  147).  303. 
Southern   Express  Co.  v.  Alemphis  &  L.  Ry.   Co.   (8  Fed.  799,  2  Mc- 
Crary 570),  303» 
Southern  Flour  &  Grain  Co.  v.   N.  P.  R.   Co.   (127   Ga.  626,  56  S.   E. 

742,   9   L.   R.  A.    (N.   S.)    853,   119   Am.   St.   Rep.   356),   42. 
Southern    Furniture    Mfrs.   Asso.  v.    So.    Ry.    Co.    (25    I.    C.    C.    379), 

145,   244. 
Southern   Gro.  Co.  v.  Ga.  N.   R.  Co.   (12  I.   C.   C.  299),  346. 
Southern  Ind.  Ex.  Co.  v.  United  States  Ex.  Co.   (88  Fed.  659,  1  Fed. 

Anti-Trust    Dec.    862),    347,    492. 
Southern  Ind.  Ex.  Co.  v.  United  States  Ex.  Co.  (92  Fed.  1022,  35  C. 

C.  A.  172,  1  Fed.  Anti-Trust  Dec.  992),  492. 
Southern  Pac.  Co.  v.  Arnett   (126  Fed.  75,  61  C.  C.  A.  131),  483. 
Southern  Pac.  Co.  v.  Bartine  (170  Fed.  725),  49. 
Southern    Pac.    Co.   v.    Campbell    (230    U.    S.   537,   57    L.    Ed.    1610,    33 

Sup.   Ct.   1027),   84. 
Southern    Pac.   Co.   v.    Colorado   Fuel    &   Iron    Co.    (101   Fed.   779.   42 

C.    C.    A.    12),    339,    346,    350.    358. 
Southern   Pac.   Co.  v.   Crenshaw   (5   Ga.  App.   675,   63   S.    E.   865),  34, 

295,  439. 


Table  of  Casijs  Cited.  xcvii 

[  References  are  to   Sections.  ] 

Southern  Pac.  Co.  v.  Goldfield  Con.  Milling  &  Transp.   Co.   (220  Fed. 

14),    208,    383. 
Southern   Pac.   Co.  v.   Int.   Com.   Com.    (177   Fed.   963*),  222.  395. 
Southern  Pac.  Co.  v.  Int.   Com.   Com.   (200  U.   S.  536,  50  L.   Ed.  585, 

36   Sup.    Ct.    330),    177,   352,    358,   406. 
Southern  Pac.   Co.  v.   Int.   Com.   Com.    (215  U.   S.   226,   54   L.   Ed.   169, 

30  Sup.    Ct.   89),   395. 

Southern   Pac.   Co.  v.   Int.   Com.   Com.    (219   U.   S.  433,   55   L.    Ed.   283, 

31  Sup.    Ct.   288),   95,    101,   222,   312,   314,   395,   396. 

Southern  Pac.  Co.  Ownership  of  Oil  Steamers  (34  I.  C.  C.  77),  203,  354. 
Southern  Pac.  Co.  Ownership  S.  S.  Pasadena  (33  I.   C.  C.  476),  354. 
Southern    Pac.    Co.    Steamboat    Sacramento    River    (34    I.    C.    C.    174), 

354. 
Southern   Pac.   Co.  v.   R.  R.  Com.   of  Ore.    (119  Pac.  727),  49. 
Southern    Pac.    Co.   v.   R.   R.    Com.   of   Ore.    (208   Fed.   926),   43. 
Southern   Pac.   Co.  v.  United   States   (171   Fed.   360,  96   C.   C.   A.   252), 

481. 
Southern   Pac.   Co.  7'.  United   States    (237  U.   S.   202,   59   L.   Ed.  — ,   35 

Sup.    Ct.    573),    476. 
Southern    Pac.   Ter.    Co.   v.    Int.    Com.    Com.    (166    Fed.    134),   41,   222, 

335,  336,    346,    395,    465,    468. 

Southern   Pacific   Ter.    Co.   v.    Int.    Com.    Com.    (219   U.    S.   498,    55    L. 
Ed.    310,    31    Sup.    Ct.    279),    10,    41,    66,    68,    138,    139,    222,    313,    335, 

336,  346,    395. 

Southern    Pine   Lumber   Co.   v.    Southern    Ry.    Co.    (14    I.    C.    C.    195), 

215,    222,    383,    392,    395. 
Southern  Ry.  Co.  v.  Atlanta  Stove  Works   (128  Ga.  207,  57  S.  E.  429), 

38,   43,   49,   60. 
Southern  Ry.  Co.  v.  Brown   (131  Ga.  245,  62  S.   E.  177),  42. 
Southern    Ry.    Co.    v.    Burlington    Lumber    Co.    (225    U.    S.    99,    56    L. 

Ed.  1001,  32  S.   Ct.  659).  41. 
Southern  Ry.  Co.  v.  Frank   (5  Ga.  App.  574,  63  S.   E.  656),  295. 
Southern  Ry.  Co.  v.  Greensboro  Ice  &  Coal  Co.   (134  Fed.  82),  14. 
Southern  Ry.  Co.  v.  Indiana   (179  Ind.  23,  100  N.   E.  337),  4,  415. 
Southern    Ry.    Co.   v.    King    (217    U.    S.    524.    54    L.    Ed.    868,    30    Sup. 

Ct.   594),   23. 
Southern  Ry.  Co.  v.  Love   (139  Ga.  362,  77  S.  E.  44),  35. 
Southern   Ry.  Co.  v.   Melton    (133   Ga.   277,   65  S.   E.   665).  24. 
Southern   Ry.   Co.  v.  Railroad   Com.  of   Indiana   (236  U.   S.  439,   59   L. 

Ed.  — ,  35   Sup.   Ct.  304),  4,   15,   31. 
Southern   Ry.   Co.  v.   Ragsdale   (119   Ga.  773,  47   S.   E.   179),  32. 
Southern   Ry.   Co.  v.   Reid   (222  U.  S.  424,   56   L.   Ed.  257,  32   Sup.   Ct. 

140),    5,    6,    13,    25.    58. 
Southern   Ry.   Co.  v.   St.   Louis   Hay   &   Grain   Co.    (149   Fed.   609,   153 

Fed.   728,   82   C.   C.  A.   614),   14,   80,   383,   394. 
Southern   Ry.   Co.  v.   St.   Louis   Hay   &   Grain   Co.    (214   U.   S.   297,   53 

L.    Ed.    1004,   29    Sup.    Ct.    678),    10,    14.    192,   312,   346,    383,    394. 

— d 


xcviii  Table  of  Casks  Cited. 

[  References  are  to   Sections.  ] 

Southern  R.v.  Co.  z:  Tift   (148  Fed.  1021),  50,  90,  93,  207,  304,  339,  352, 

406,  443,  445,  486. 
Southern   Ry.   Co.  v.  Tift    (206  U.   S.  428,   51   L.   Ed.   1124,  27   Sup.   Ct. 

709),  50,  90,  93,  207,  222,  241,  304,  102,  339,  352,  383,  406,  443,  445. 
Southern   Ry.   Co.   v.   United   States   (205   Fed.   465),  222,   346,   392. 
Southern    Ry.    Co.   v.    United    States    (222    U.    S.    20,    56    L.    Ed.    72,    32 

Sup.    Ct.   2),   3. 
Southwestern  Mo.  Millers'  Club  :■.  St.  L.  &  S.  W.  R.  Co.   (26  I.  C.  C. 

245),    337,    341. 
Southwestern   Produce   Distributors   r.   W.   R.    Co.    (20    I.    C.    C.   458), 

149,  345. 
Spartanburg  Board  of  Trade  v.  R.   &  D.   R.   Co.   (2   I.   C.   C.   304,  2  I. 

C.    R.    193),    153,    199,   348. 
Speigle   Co.   (Geo.  M.)   v.  Chesapeake   &  O.   R.   Co.   (11   I.   C.   C.  367), 

348. 
Sperry-Hutchinson   C.   Co.  v.  Tacoma   (190   Fed.   682),  453. 
Spillcrs   &   Co..z/.   Louisville   &  X.   R.    Co.    (8   I.   C.   C.   364).   361. 
Spokane  v.   N.   P.   R.   Co.    (15   I.   C.   C.   376),   339,   346,   348. 
Spokane  v.  N.  P.  Ry.  Co.   (19  I.  C.  C.   162),  50,  156. 
Spokane  v.   N.   P.  Ry.    Co.    (21   I.   C.   C.  400),   63,  154,  202,   345,   348. 
Spratlin  v.  S.   L.   &  S.  W.   R.   Co.    (76  Ark.   82.   88   S.  W.   836),  204. 
Sprigg  V.  Baltimore  &  O.  R.  Co.   (8  I.  C.   C.  443),  444,  486. 
Spring  Hill  Coal  Co.  v.   E.   R.   Co.   (18   I.   C.   C    508),  195. 
Spring  Valley   Water  Works  v.   San   Francisco    (82   Cal.   286,   22   Pac. 

910),   49. 
Spring  Valley   Water  Works  v.   Schlotter   (110  U.   S.   347,  28   L.   Ed. 

173,    4    Sup.    Ct.    48),    45. 
Squire  r.  Mich.  Cent.  R.  Co.  (4  I.  C.  C.  611,  :!  I.  C.  R.  515).  91.  446. 
Standard   Ency.  of  Procedure   (\'ol.  5.  p.    153.) 
Standard   Lime   &   Stone   Co.   v.    Cumberland    \.    R.    Co.    (15    L    C.    C. 

620),    346,    445. 
Standard  Mirror  Co.  v.  P.  R.  Co.  (27  L  C.  C.  200),  251. 
Standard  Oil  Co.  v.  C.  T.  T.  R.  Co.  (21   L  C.  C.  460),  408. 
Standard   Oil    Co.   v.   P.   Co.    (29   L   C.    C.   524),   348. 
Standard   Oil    Co.   r.   United   States    (164   Fed.   376.   90   C.    C.   A.   364), 

335,    361,    371.    449. 
Standard  Oil   Co.   r.   United   States    (179   Fed.   614),  67,  371. 
Standard    Oil    Co.   v.    United    States    (221    U.    S.    1.    55    L.    Ed.   619,    31 

Sup.  Ct.  502.  34  L.  R.  A.  (N.  S.)   834,  Ann.  Cas.  1912D.  734),  4861. 
Standard    Sanitary    Mfg.    Co.   v.    United    States    (226    U.    S.    20,    57    L. 

Ed.    107,    33    Sup.    Ct.   9),   486. 
Stanley  v.  Wabash,  St.   L.  &  P.  R.   Co.   (100  Mo.  435,   13   S.  W.  709, 

8   L.    R.   A.   549),   25. 
Star  Grain  &  Lumber  Co.  v.  Atchison,  T.  &  S    F.  Ry.  Co.  (14  L  C.  C. 

364),    196,    249,    338,    397. 
Starks  Co.  v.  Grand  Rapids  &  L  Ry.  Co.   (165  Mich.  642,  131   X.   W. 

143),    297. 


Table  of  Cases  Cited.  xcix 

[  Retereiices'are  to   Sections.] 

vState  V.   Atlantic   C.   L.   R.   Co.    (<51   Fla.   799,   54   So.   900,   .56    Fla.   617, 

47    So.    969),    5. 
State  (of  Iowa)  v.  Atlantic  C.  L.  R.  Co.  (24  I.  C.  C.  3  34),  91. 
State  V.   Bernheim    (19   Mont.   512,   49   Pac.   441).   37. 

State  V.  Boneval   (128  La.  702,  55  So.  569,  Ann.   Cas.   1912C,  837),  442. 
State    V.    Brodnax    (228    Mo.    225,    128    S.    W.    177,    137    Am.    St.    Rep. 

613),   57. 
State  V.   Cadwallader   (172   Ind.   619.  87   N.   E.   644,   89   N.    E.  319),   327. 
State  of  Iowa  v.  Chicago,  M.  &  St.  P.  R.  Co.  (4  I.  C.  R.  425,  33  Fed. 

391),    335. 
State  of  Iowa  v.  C.  M.  &  St.  P.  R.  Co.   (145  U.  S.  ()32,  36   L.   Ed.  857, 

12    Sup.    Ct.    978),    335. 
State  V.  Chicago,  M.  &  St.  P.  R.  Co.  (11  S.  D.  282,  77  N.  W.  104),  19. 
State  V.  Chicago,  M.  &  St.  P.  R.  Co.  (38  Minn.  281,  37  N.  W.  782),  49. 
State  V.  Chicago,  M.  &  St.  P.  R.  Co.  (152  Iowa  317,  130  N.  W.  802),  68. 
State  V.  C.  N.  O.  &  T.  P.  R.  Co.  (47  Ohio  St.  130,  23  N.  E.  928),  175. 
State   V.    Cleveland,   C.    C.   &   St.   L.   R.    Co.    (157    Ind.   288,   61    N.    E. 

669),    30. 
State    ex    rel.    Attorney-General    v.    Columbus    Gaslight    &    Coke    Co. 

(34  Ohio  St.  572,  32  Am.  Rep.  390),  45. 
State  V.   Corbett   (57  Minn.  345,  59  N.  W.  317,  24   L.   R.  A.  498),   37. 
State  V.  De   Barry   (130  La.   1090,  50  So.  892),   58. 
State  V.   Eighteen   Casks  of  Beer   (24  Ok.  786,   104   Pac.   1093),   58. 
State  V.  Florida  E.  C.  R.  Co.   (58  Fla.  524,  50  So.  425),  13. 
State  V.  G.  N.  R.  Co.  (17  N.  D.  370,  116  N.  W    89),  442. 
State  V.  Grier   (88  Atl.  579),  58. 
State  V.   Harbourne   (70  Conn.  484,  40  Atl.   179,   66  Am.   St.   Rep.   1:36, 

40  L.  R.  A.  607),  58. 
State   V.    Harper    (48    Mont.    456,    138    Pac.    495,    51    L.    R.    A.    (N.    S.) 

157),   2. 
State  V.  I.   &  G.  N.  R.   Co.   (71  S.  W.  994).  335. 
State  V.   Indiana  &  I.    S.   Ry.   Co.    (133   Ind.   69.   :!2    X.    E.   817,   IS   L. 

R.   A.    502),   30. 
State   V.   Intoxicating   Liquors    (104   Me.   502.   71    Atl.   758).   58. 
State  V.  Lake   E.  &  W.   R.  Co.   (83   Fed.  284). 
State  V.   Leech    (119   La.   522,   44   So.   285),   56. 

State  V.  Louisville   &  N.  R.   Co.   (177   Ind.   553.  96   N.   E.  340).   15. 
State  V.  Louisville  &  N.   R.   Co.   (57  Fla.  526,  49  So.  39).  27. 
State  V.  Lowry  (166  Ind.  372,  77  N.  E.  728,  4  L.  R.  A.  (N.  S.)   532),  58. 
State  V.  Mallory  (73  Ark.  236,  83  S.  W.  955,  67  L.  R.  A.  773),  58. 
State  V.  Martyn   (82  Neb.  225,  117  N.  W.  719),  39. 
State  V.   Miller   (66  W.   Va.  436,   66   S.   E.   522),   58. 
State  V.  Minneapolis  &  St.  L.  R.  Co.   (80  Minn.  191,  s:;   X.  W.  60,  89 

Am.    St.    Rep.    514),    14. 
State  V.  Mo.  Pac.   R.  Co.   (76  Kas.  467.  92  Pac.  606),  49. 
State  V.  Mo.  Pac.  R.  Co.   (242  Mo.  339,  147  S.  W.  118),  22. 
State  V.  Ogden   Rapid   Transit   Co.   (38  Ut:\h  242.   1J2   Pac.   120),  9. 


c  Table  of  Cases  Cited. 

[  References  are  to   Sections.  ] 

State   V.   Otis    (60   Kas.   248,   56   Pac.   14).   38. 

State  V.  Railroad  Com.  of  Washington  (52  Wash.  17,  100  Pac.  179),  14. 

State  V.  Republican  V.  R.  Co.  (26  N.  W.  205,  24  N.  W.  329),  9. 

State  V.  St.  Louis  &  S.  F.  R.  Co.  (105  Mo.  App.  207,  79  S.  W.  714).  21. 

State  V.  S.  A.  L.  R.   Co.   (48  Fla.  114,  37  So.  652),  49. 

State  V.   So.   Kans.   R.   Co.    (49   S.  W.  252),  335. 

State  V.   Southern   Ry.   Co.   (122   X.   C.   1052,  30  S.   E.   133,  41   L.  R.  A. 

246),   38. 
State    V.    Thompson    (47    Ore.    639,    84    Pac.    476,    4    L.    R.    A.    (N.    S.) 

480),    37. 
State  V.   U.   P.   R.   Co.    (89   Neb.  29,   126  X.  W.  859),   39. 
State  V.  Western   &  A.   R.   Co.   (138   Ga.  835,   76  S.   E.   577),  43. 
State  V.  Wilmar  &  S.  F.  R.  Co.  (88  Minn.  448,  93  N.  W.  112)  47. 
State  V.  Wrightsville  &  T.   R.  Co.   (104  Ga.  437,  30  S.  E.  891),   14,  17. 
State  V.  Yazoo  &  V.  R.  Co.   (87  Miss.  679,  40  So.  263),  9. 
State  V.  Young,  (29  Minn.  474,  9  N.  W.  737),  47. 
Steamer  Lines  on  Chesapeake  Bay  (35   L  C.   C.  692),  203,  354. 
Stedman  v.  Chicago  &  N.  W.  Ry.  Co.   (13  L   C.  C.  167),  338,  383. 
Steenerson  v.  G.  N.  Ry.  Co.  (69  Minn.  353,  72  N.  W.  713),  49. 
Steele  v.  United  Fruit  Co.   (190  Fed.  631),  486. 
Stephens   v.    Cent,    of    Ga.    Ry.    Co.    (138    Ga.    625,    75    S.    E.    1041,    42 

L.  R.  A.  (N.  S.)  541,  1913  E.  Ann.-Cas.  609),  17,  36,  43,  61,  80. 
Sterling  &  Sons  Co.  v.  M.  C.  R.  Co.  (21  L  C.  C.  451).  404. 
Stewart  v.  Michigan  (233  U.  S.  665,  58  L.  Ed.  786,  34  Sup.  Ct.  476).  58. 
Stickney   v.    Int.    Com.    Com.    (164    Fed.    638),    358,    395,    462. 
Stiritz  V.  N.  O.  M.  &  C.  R.  Co.  (22  L  C.  C.  578),  98. 
Stone  V.   A.   C.   L.    R.   Co.    (144    N.   C.   220,   56   S.   E.   932),   25. 
Stone  V.  Detroit,  etc.,  R.  Co.   (3  L  C.  C.  613,  3  L  C.  R.  60),  348. 
Stone  V.   Farmers'  Loan   &  Trust  Co.   (116  U.   S.  307,  29  L.   Ed.  631, 

6  Sup.   Ct.  334,  338.   1191),   5,  45,  63. 
Stone  2'.  111.  Cent.  R.  Co.   (116  U.  S.  347.  29  L.   Ed.  6.->0),  6  Sup.  Ct. 

348,    1191),    45. 
Stone  V.  New  Orleans  &  N.  E.  R.  Co.  (116  U.  S.  3.'i2,  29  L.  Ed.  651, 

6   Sup.    Ct.   349),   45. 
Stone  V.  Wisconsin   (94  U.   S.  181,  24  L.   Ed.  102),  45. 
Storr  V.  Pensacola  R.  Co.  (29  Fla.  617,  11  So.  226),  49. 
Stowe-Fuller  Co.  v.  Penn.   Co.   (12  L   C.   C.  215),  160. 
Strait  V.   National  Harrow   Co.   (51   Fed.   819,   1   Fed.   Anti-Trust   Dec. 

52),    486. 
Straus  r.  Am.   Pub.   Asso.    (177   N.   Y.   473,   64   L.    R.  A.   701,    101   Am. 

St.    Rep.    819,   69   N.    E.    1107).   486. 
Straus  V.  Am.   Pub.  Asso.    (231  U.   S.  222,   58   L.   Ed.   192,  34   Sup.   Ct. 

84),   486. 
Straus  V.  Am.   Pub.  Asso.   (193  N.  Y.  496,  86  N.   E.   525),  486. 
Straus  V.  Am.  Pub.  Asso.  (144  N.  Y.  548,  93  N.  E.  1133),  486. 
Strough  V.  New  York  C.  &  H.  R.  R.  Co.  (87  N    Y.  Sup.  30,  92  App. 

Div.    584),    383. 


Table  of  Cases  Cited.  ci 

[  References  are  to   Sections.  ] 

Strough  V.  New  York  C.  &  H.  R.  R.   Co.   (181  N.  Y.  53:5).   ^   N.   E. 

1133),    383. 
Strout  V.  United  Shoe  Mach.   Co.   (195   Fed.  313).  492. 
Strout   V.  United   Shoe   Mach.   Co.   (202   Fed.   G02),   492. 
Suflfern  Grain  Co.  v.  111.  C.  R.  Co.  (22  I.  C.  C.  178).  140. 
Suffern.  Hunt  &  Co.  v.   Ind.  D.   &  W.  Ry.   Co.   (7   I.   C.  C.  255).  180, 

212,   358. 
Sun   Co.   V.   I.   S.    R.   Co.    (22    I.   C.    C.   194),   107. 

Sunday  Creek  Co.  v.  United  States   (210  Fed.  747),  345,  358,  371. 
Sunderland  Bros.  v.  Chicago,  R.  I.  &  P.  R.  Co.  (158  Fed.  877),  443. 
Sunderland  Bros.  v.  St.  L.  &  S.  F.  R.  Co.  (23  I.  C.  C.  259).  81. 
Sunderland  Bros.  Co.  v.  Missouri,  K.  &  T.  Ry    Co   (18  I.  C.  C.  425), 

115. 
Sunnyside  Coal  Min.  Co.  v.  D.  &  R.  G.  R.  Co.  (19  I.  C.  C.  20),  213. 
Superior  Commercial  Club  v.  G.  N.  R.  Co.  (25  I.  C.  C.  342),  398. 
Suspension  of  Advance  on  Soft  Coal  (23  I.  C.  C.  518),  399. 
Suspension  of  Rates  on  Packing  House  Products  (21  I.  C.  C.  G8),  398. 
Swift  V.   Philadelphia   &   R.   R.   Co.    (58   Fed.  858),  339,   383. 
Swift  V.  Philadelphia  &  R.  R.  Co.   (64  Fed.  59),  383. 
Swift  V.  United  States   (196  U.  S.  375,  49  L.  Ed    518,  25  Sup.   Ct.  2r6, 

2  Fed.  Anti-Trust  Dec.  641),  2,  456,  469,  486. 
Switching  Ice  in  Chicago  (24  I.  C.  C.  660),  399. 
Sylvester  v.  Penn.  R.  Co.- (14  I.   C.   C.  573),  339.  343,  383. 


T. 

Tampa  Board  of  Trade  v.  A.  &  V.  R.  Co.  (33  I.  C.  C.  457),  375. 
Tampa  Board  of  Trade  v.  L.  &  N.  R.  Co.  (30  I.  C.  C.  377),  375. 
Tang  Tun   v.   Edsell    (223   U.   S.   673.  56   L.    Ed.   606,   32   Sup.   Ct.   359), 

316,    396. 
Tap  Line  Cases  (23  I.  C.  C.  277,  549,  31  I.  C.  C.  490,  34  I.  C.  C.  116,  35 

I.    C.    C.   458,   209    Fed.   244,   234  U.    S.    1,   58    L.    Ed.    1185,   34   Sup. 

Ct.   741),    170,    193,    197,   211,   346,   404. 
Taylor  v.  N.   &  W.    R.   Co.    (25    I.   C.   C.   613).   398. 
Taylor,  The  Moses   (71  U.   S.  4  Wall.  429,   18  L.   Ed.  397),  292. 
Taylor  Dry  Goods  Co.  v.  M.  P.  R.  Co.  (28  I.  C.  C.  205),  112,  156. 
Tecumseh  Celery  Co.  v.  Cincinnati,  J.  &  M.  Ry.  Co.   (5  I.  C.  C.  663, 

4  I.  C.  R.  318),  392. 
Texas  &  N.  O.  Ry.  Co.  v.  Gulf  &  I.  Ry.  Co.  (54  S.  W.  1031),  13. 
Texas  &  N.  O.  Ry.  Co.  v.  Sabine  Tram  Co.  (227  U.  S.  Ill,  57  L.  Ed. 

442,  33  Sup.  Ct.  229),  68,  335,  336. 
Texas  &  Pac.  Ry.  Co.  v.  Abilene  Cotton  Oil   Co.   (204  U.  S.  426,  51 

L.  Ed.  553,  27  Sup.  Ct.  350,  9  Ann.  Cas.  1075),  58,  61,  64,  69.  70,  145, 

204,  241,   297,  317,   358,   838,   405,  407,  443. 
Texas  &   P.   R.  Co.  v.  Andrews   (54  Tex.   Civ.   App.  418,  55  Tex.   Civ. 

App.  302,   118   S.   W.  1101).  24. 


cii  Table  of  Cases  Cited. 

[  References  are  to   Sections.  ] 

Texas  &  Pac.  Ry.  Co.  v.  Cisco  Oil  Mill  (204  U.  S.  449,  51  L.  Ed.  5G2. 

27  Sup.   Ct.  358),  241,  358. 
Texas  &  Pac.  Ry.   Co.  v.  Int.  Com.   Com.    (1G2  U.   S.  197,  40  L.   Ed. 

940,   16   Sup.   Ct.   666.   5   I.    C.   R.   405),   64,  85,  93.    125.   128,   153,    179. 

312,    339,    345,    358,    388,    389,    394,    395,    406. 
Texas   &  Pac.   Ry.   Co.  v.   Mugg   (202  U.   S.   242,   50   L.    Ed.   1011,  26 

Sup.    Ct.    628),    180,    204,    212,    358,    361. 
Texas  &  Pac.  Ry.  Co.  v.  R.  R.  Com.  of  La.  (J83  Fed.  1005),  68. 
Texas  &  Pac.  Ry.  Co.  v.  R.  R.  Com.  of  La.   (192  Fed.  280,  112  C.  C. 

A.  528),  87. 
Texas    &    P.    R.    Co.    v.    Taylor    ^2    Tex.    Civ.    App.    418,    118    S.    V\  . 

1097),  24. 
Texas  &  Pac.   Ry.   Co.  v.  United   States   (205   Fed.   380).   3,  44,   62,   68, 

184,  222,   336,  346. 
Texas   Cemen.t   Plaster   Co.   v.   St.   Louis   &   S.   F.   R.   Co.    (12   L   C.   C. 

68),   346,    383. 
Texas   Cement   Plaster   Co.  r.   St.   Louis  &  S.   F.   R.   Co.   (26  L   C.   C. 

508),  897. 
Texas  Cement  Prod.  Co.  v.  St.  L.  &  S.  F.  Co.   (26  L  C.  C.  508),  400. 
Texas  C.  R.  Co.  t.  Hannay-Frerichs  &  Co.   (130  S.  W.  250),  25. 
Texas  Common  Point  Case   (26  L  C.   C.  528),  105. 
Texico  Transfer  Co.  v.  L.  &  N.  R.  Co.  (20  L  C.  C.  17),  195. 
Thomas  v.   Cincinnati,    N.  O.   &  T.   P.   Ry..  Co.    (62   Fed.  803,   1   Fed. 

Anti-Trust   Dec.  266),  486. 
Thompson  v.   M.    K.   &  T.   Ry.   Co.    (105   Tex.   372,   126   S.   W.   257,    128 

S.  W.  109),  14. 
Thompson  v.  Penn.  R.  Co.  (10  L  C.  C.  640).   175. 
Thompson    Lumber    Co.   v.    111.    Cent.    R.    Co.    (13    I.    C.    C.   657),    126, 

339,    406. 
Thompson   Lumber   Co.  v.   111.   Cent.   R.   Co.    (14   I.   C.   C.   566),   416. 
Thoinpson  Lumber  Co.  v.  Int.  Com.  Com.  (193  Fed.  682),  406,  407. 
Thomson  v.  Union  Castle  Mail  S.  S.  Co.  (149  Fed.  933),  486. 
Thomson  v.  Union   Castle  Mail  S.  S.  Co.   (166  Fed.  251.  32   C.  C.  A. 

315),  486. 
Thurber  v.  New  York  C.  &  H.  R.  R.  Co.   (3  I.  C.   C.  473,  2   I.  C.  R. 

742),   88,    111,    156,   339,   346. 
Tift  V.  Southern  Ry.  Co.   (10  I.  C.   C.  548),  50,  88,  90,  92,  96,  100,    102, 

207,   327,   339,   352,   392,  395,   486. 
Tift  V.  Southern  Ry.   Co.   (123  Fed.  789),  50,  61,  64,  304,  339,  442,  445. 
Tift  V.  Southern  Ry.  Co.  (138  Fed.  753,  2  Fed.  Anti-Trust  Dec.  733),  50, 

64,    92,    102,    207,   304,   327,   339,    352,   406,   445,    486. 
Tift  V.   Southern   Ry.   Co.    (159   Fed.   555),  50.   339,   383. 
Tileston  Milling  Co.  v.  Northern   Pac.   R.   Co.   (8   I.   C.   C.   346),    129, 

339,  348. 
Tilley  v.  Railroad  Co.  (5  Fed.  641.  4  Woods  427),  50. 
Toledo,  etc.,  R.  Co.  v.  Penn.  Co.  (54  Fed.  730,  19  L.  R.  A.  387,  5  I.  C. 

R.    545.   22   U.    S.   App.   561).   304.   307.    347.   381,   383,   384. 


Table  of  Casks  Cited.  cm 

I  References  are   to   Sections.  ] 

Tomlin-Harris  Mach.  Co.  v.  Louisville  &  N.  R.  Co.   (12  I.  C.  C.  133), 

346, 
Topeka   Banana   Dealers'  Asso.  v.  St.   L.   &  S.   F.  R.   Co.   (13   I.   C.   C. 

620),  348. 
Topeka  Traffic  Asso.  v.  A.  &  V.  R.  Co.  (27  I.  C.  C.  428),  145. 
Tozer  v.  United  States   (.52  Fed.  917),  345,'  346,  371.  384. 
Traer  v.   Chicago   &   A.   R.   Co.    (13   I.    C.   C.   451),    175,   222,   309,   336, 

346,   395. 
Traffic   Bureau   Merchants'    Exchange   of   St.   Louis   v.   Chicago,    B.   & 

Q.   R.   Co.    (14   I.   C.   C.  317),   168,  312,  337. 
Traffic   Bureau   Merchants'   Exchange  of  St.   Louis  v.   Chicago,   B.   & 

Q.  R.  Co.   (14  L  C.   C.  551),  312,  411. 
Traffic   Bureau  Merchants'   Exchange  of  St.  Louis  v.   C.   B.   &  Q.   R. 

Co.    (23  L   C.  C.  496),  140,   337. 
Traffic  Bureau  Merchants  Exchange  of  St.  Louis  v.  Missouri  Pac.  R. 

Co.  (13  L  C.  C.  11),  346. 
Trammell  Railroad  Comrs.  of  Ga.  v.  Clyde  S.  S.  Co.  (5  L  C.  C.  324, 

4  L  C.   R.  120),   135,   153,  199,  335,   345,   346,   348,  392. 
Transcontinental  Commodity  Rates   (32  L   C.  C.  449).  375,  398. 
Transit  Case  (24  L  C.  C.  340),  169,  433. 
Transportation  Bureau  of  Wichita  v.  S.  L.   L  M.  &  S.  R.   Co.    (23  L 

C.    C.   679),    107. 
Transportation  of  Fresh   Meats   (23   L  C.   C.  652),  346. 
Transportation  of  Lime  in  Car  Loads  (24  L  C.  C.  170),  348. 
Transportation  of  Wool,  Hides  &  Pelts  (23  L  C    C.  151),  169. 
Trap  or  Ferry  Car  Service  (34  L   C.  C.  516),  141,  193. 
Travis  v.  Wells  Fargo  Ex.  Co.  (79  N.  J.  L.  83,  74  Atl.  444),  ;!4. 
Trier  v.   C.   St.   P.   M.   &   S.   Ry.   Co.    (30   L   C.    C.   352),   6,   44,   336. 
Truckers  Transfer   Co.  v.   C.   &  W.   C.   R.   Co.    (27   I.   C.   C.  275),   121, 

195,  224,  249,  313,  338,  375,  400. 
Tucker  v.  M.  K.  &  T.  R.  Co.  (82  Kan.  222,  108  Pac.  89),  35,  42. 
Tullis  V.  Lake  E.  &  W.  R.  Co.  (175  U.  S.  348,  44  L.  Ed.  192,  20  Sup. 

Ct.  136).  33. 

U. 

Ullman  v.  Adams   Ex.   Co.   (14  I.   C.   C.   585),   265. 

Ulrick  V.  Lake  Shore,  etc.,  R.  Co.   (9  I.   C.   C.  495),  348. 

Union    Bridge    Co.  v.   United   States    (204   U.    S.   364,    51    L.    Ed.    523, 

27    Sup.    Ct.    367).    53.    54. 
Union  Lime  Co.  v.  C.  &  N.  W.  Ry.  Co.  (233  U.  S.  211,  58  L.  Ed.  924, 

34  Sup.  Ct.  522),  12.  195,  344,  401. 
Union  Made  Garments  Mfgrs.  Asso.  v.   C.  &  N.  W.  R.  Co.   (16  L  C. 

C.   405).      See   Association   of  Union    Made    Garments. 
Union  Pacific  Coal   Co.  v.  United  States   (173   Fed.  737,  97   C.   C.   A. 

578).   486. 
Union   Pacific   R.   Co.  r.  Goodridge   (149  U.   S.   680.  37   L.   Ed.   896,   1?, 

Sup.    Ct.   970).    145. 


CIV  Ta]5Li-:  of  Cases  Cited. 

[  References  are  to   Sections.  ] 
Un 


Un 
Un 

Un 

Un 

Un 
Un 

Un 
Un 
Un 

Un 

Un 

Un 
Un 
Un 
Un 
Un 

Un 

Un 

Un 

Un 
Un 

Un 

Un 
Un 
Un 

Un 

Un 

Un 


on  Pac.  R.  Co.  i'.  Oregon  &  Washington  L.  M.  Asso.  (165  Fed. 
13,    91    C.    C.    A.    51),   443. 

on  Pac.  R.  Co.  z'.  United  States  (59  Fed.  813,  8  C.  C.  A.  282),  327. 
on  Pac.  R.  Co.  v.  United  States  (Sinking  Fund  Cases),  (99  U. 
S.   9   Otto.    700,    25    L.    Ed.   496),   63. 

on  Pac.  R.  Co.  v.  United  States  (117  U.  S.  355,  29  L.  Ed.  920, 
6    Sup.    Ct.    772),    345,    389. 

on  Pac.  R.  Co.  v.  Updike  Grain  Co.  (22  U.  S.  215,  56  L.  Ed.  171, 
32  Sup.  Ct.  39).  16,  ]40,  168,  197,  337,  346,  404. 
on  Pac.  Tea  Co.  v.   P.  R.  Co.  (14  I.  C.   C.  545),  88. 
on   Sewer   Pipe   Co.  v.   Connelly    (99    Fed.   354,   2    Fed.   Anti-Trust 
Dec.    1),   486. 

on  Stock  Yards  &  Transit  Co.  v.  United  States  (192  Fed.  330),  66. 
on  Tanning  Co.  v.  S.  R.  Co.  (26  I.  C.  C.  159),  88,  90. 
ted   States   v.  Adams   Ex.   Co.    (229   U.   S.   381,   57   L.    Ed.   1237,   33 
Sup.    Ct.    878),    63,    66,    384. 

ted  States  -v.  Addyston  Pipe  &  Steel  Co.  (78  Fed.  712,  1  Fed. 
Anti-Trust    Dec.    631),    603. 

ted   States  v.  Addyston   Pipe   &   Steel   Co.    (85   Fed.   271,   29   C.   C. 
A.  141,  46  L.  R.  A.  122.  1  Fed.  Anti-Trust  Dec.  772),  486,  489,  491. 
ted   States  v.  Agler   (62   Fed.  824,   11   Anti-Trust  Dec.  294),  489. 
ted   States  v.  American   Naval   Stores   Co.    (172   Fed.   455),   486. 
ted  States  v.  American  Naval  Stores  Co.   (186  Fed.  592),  486. 
ted  States  v.  American  Tobacco   Co.   (164   Fed.  700),  486. 
ted   States   ■<'.   American   Tobacco    (221    U.    S.    106,    55    L.    Ed.   663. 

31  Sup.    Ct.    632),    486. 

ted  States  v  Armour  (142  Fed.  808,  2  Fed.  Anti-Trust  Dec. 
951),   486. 

ted  States  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (142  Fed.  176,  2  Fed. 
Anti-Trust  Dec.  831),  456,  489. 

ted  States  v.  Atchison,  T.  &  S.  F.  Ry.  Co.  (163  Fed.  Ill),  371. 
ted  States  v.  Atchison,  T.  &  S.  F.  R.  Co.   (166  Fed.  160).  483. 
ted   States  v.  A.  T.   &  S.   F.   R.   Co.    (185   Fed.   105,   107   C.   C.  A. 
323),    481. 

ted   States   v.   Atchison,   T.   &   S.   F.   R.   Co.    (234  U.   S.   476,   58   L. 
Ed.   1408,  34  Sup.   Ct.  986),  63,   154,  202,  345,  346,  348. 
ted  States  v.  Baltimore  &  O.  R.  Co.  (153  Fed.  997),  384. 
ted  States  v.  Baltimore  &  O.  R.  Co.  (154  Fed.  108),  175,  395,  445. 
ted    States   v.   B.    &   O.    R.    Co.    (225   U.    S.    306,    56   L.    Ed.    1100, 

32  Sup.    Ct.   817),   303,   321. 

ted    States    v.    B.    &    O.    R.    Co.    (226   U.    S.    14,    57    L.    Ed.    104.    33 

Sup.    Ct.   5),   191.    195,   222,   396. 
ted   States  v.    B.   &   O.   R.   Co.    (231   U.   S.   274,   58   L.    Ed.   218.   34 

Sup.  Ct.  75),  9,  40,  140,  197,  312,  321,  335,  343,  371,  404. 

ted   States   ex   rel.    Pitcairn    Coal    Co.   v.   Baltimore    &   O.    R.    Co. 

(165  Fed.  113,  91  C.   C.  A.  147),  174,  296,  347,  445. 


Table  of  Cases  Citkd.  cv 

[  References  are  to   Sections.  ] 

United   States   v.    Baltimore   &   O.   S.   W.   R.   Co.    (159    Fed.   33,   86   C. 

C.   A.   223),   483. 
United  States  v.   Baltimore   &  O.   S.   W.   R.    Co.    (222   U.   S.   8,   56   L. 

Ed.  68,  32   Sup.   Ct.  6),  58,  326. 
United  States  v.  B.   &  O.   S.  W.   Co.   (226  U.   S.  14,  57   L.   Ed.   104,  33 

Sup.    Ct.    5),   256,    396. 
United  States  v.  Bethlehem   Steel   Co.   (184  Fed.  546),  371. 
United  States  v.  Boston  &  A.   R.  Co.   (15  Fed.  209),  481,  483. 
United  States  v.  Bunch   (165   Fed.  736),  371. 
United  States  v.  Camden  Iron  Works   (150  Fed.  214),  371. 
United   States  v.   Cassidy   (67   Fed.   698,   1   Fed.   Anti-Trust   Dec.   449), 

486. 
United  States  v.  Chesapeake   &  Ohio   Fuel   Co.   (105   Fed.   93,  2   Fed. 

Anti-Trust    Dec.    34),    486. 
United   States  v.  Chicago  S^  Alton   R.   Co.   (148   Fed.  646),  358. 
United  States  v.   Chicago   &  N.  W.   Ry.   Co.    (127   Fed.  785,  62   C.   C. 

A.  465),   345. 
United  States  v.  Chicago,  B.  &  Q.  R.  Co.  (184  Fed.  984),  481. 
United  States  v.  Chicago,  I.  &  L.  R.  Co.   (163  Fed.  114),  342,  442,  456. 
United   States  v.   Chicago,   I.   &  L.   R.  Co.   (163   Fed.  114),  38. 
United  States  v.  Chicago  J.  R.  Co.   (211  Fed.  724),  481. 
United  States  v.  Chicago,  K.  &  S.  R.  Co.   (81  Fed.  783),  335,  432. 
United  States  v.  Chicago,  R.  I.  &  P.  R.  Co.  (211  Fed.  770),  481. 
United  States  v.  Chicago,  St.  P.,  M.  &  O.  R.  Co.   (151   Fed.  84),  358, 

371,  447. 
United  States  r.  Coal  Dealers'  Asso.   (85  Fed.  252,  1   Fed.  Anti-Trust 

Dec.  749),   486,   489. 
United  States  v.  Colorado  &  N.  W.  R.  Co.  (157  Fed.  321,  342,  85  C.  C. 

A.  27,  48),  67,  335,  432. 
United  States  v.  Debs   (64  Fed.  724,  1  Fed.  Anti-Trust  Dec.  322),  486. 
United   States  v.  DeCoursey   (82   Fed.   302),   358,   384. 
United  States  v.  Delaware  &  Hudson  Co.  (164  Fed.  215),  173. 
United  States  v.  Delaware  &  Hudson   Co.    (213  U.  S.  366,  53   L.   Ed. 

836,   29   Sup.    Ct.   527),   63,   173,   303,    343. 
United  States  v.  Delaware,   L.   &  W.   Co.   (40  Fed.   101),   197,  345,  346. 
United  States  v.  Delaware,  L.  &  W.  R.   Co.   (152  Fed.  269),  335,  371, 

447. 
United  States  v.  Delaware,  L.  &  W.  R.  Co.   (238  U.  S.  516,  59  L.  Ed. 

— ,  35  Sup.  Ct.  873,  213  Fed.  240),  63,  173,  343,  486. 
United   States  v.   Du   Pont   De   Nemours   &   Co.    (188   Fed.   127),   486, 

489. 
United  States  v.   Egan   (47  Fed.  112),  345. 

United  States  v.  Eas:  Tenn.,  Va.  &  Ga.  Ry.  Co.  (13  Fed.  642),  481. 
United   States  v.   Eastern   States   R.   L.   D.   Asso.    (201   Fed.   581),   486. 
United  States  v.  Eastman   Kodak  Co.  (226  Fed.  62),  487. 
United  States  v.   E.  R.  Co.   (191   Fed.  941),  481. 
United    States   v.    E.   R.    Co.    (209    Fed.   283),    176,   358. 


cvi  Table  of  Cases  Cited. 

\  References  are  to   Sections.  ] 

United  States  v.   E.  R.  Co.   (213  Fed.  391).  442 

United   States   v.    Elliott    (62   Fed.   801,   1    Fed.   Anti-Trust   Dec.   262), 

486. 
United   States   v.    Elliott    (64    Fed.    27,    1    Fed.   Anti-Trust   Dec.    311), 

486,    489,   490. 
United   States  v.   El   Paso   &  N.   E.   R.   Co.    (178   Fed.   846),   485. 
United  States  v.  Fowkes   (53  Fed.  13,  3  C.  C.  A.  394),  384. 
United   States   v.   Geddes    (131   Fed.   452,   65   C.   C.   A.   320),   335. 
United  States  v.   Gettysburg  Elec.   Ry.   Co.    (160  U.  S.   668,  40  L.   Ed. 

576,  16  Sup.  Ct.  427),  7. 
United  States  v.  Grand  T.  R.  Co.   (225  Fed.  283),  359,  371. 
United  States  v.  Grand  T.  R.  Co.   (208  Fed.  733),  486. 
United  States  v.  Great  Lakes  Towing  Co.   (217  Fed.  656),  56,  65,  486. 
United  States  v.  Great  Nor.  R.  Co.  (151  Fed.  84),  448. 
United  States  z:  Great  Nor.  R.  Co.   (157  Fed.  288),  63,  371,  448. 
United  States  v.   Greenhut   (50  Fed.  469,   1   Fed.  Anti-Trust  Dec.   30), 

487. 
United   States  z:   Hamburg-Am.   P.   F.   &   Geselschaft    (200   Fed.   806), 

486. 
United   States  z\  Hanley   (71   Fed.   672),  345.   384,  386.  387. 
United   States  r.   Harris    (85   Fed.   533),  481. 
United   States   ?■    Harris    (177   U.    S.   305,   44    L.    Ed.    780.    20    Sup.    Ct. 

609),    481. 
United  States  v.  H.  V.   R.   Co.   (194  Fed.  234).   176.  345.  358.  370.  371. 
United  States  v.  Hopkins   (82  Fed.   529,   1   Fed.  .\nti-Trust   Dec.   725), 

486. 
United  States  v.  Howell  (56  Fed.  21).  384,  386. 

United   States  v.   International   Harvester   Co.    (214   Fed.   987),   486. 
United    States   v.   Jellico    Mountain    Coal    &    Coke    Co.    (43    Fed.    898, 

1    Fed.   Anti-Trust   Dec.    1),   489. 
United    States   v.   Jellico    Mountain    Coal    &    Coke    Co.    (46    Fed.    432, 

12  L.   R.  A.  753,  1   Fed.  Anti-Trust  Dec.  9),  486. 
United    States    v.    John    Reardon    Sons    Co.    (191    Fed.    454),    486. 
United  States  v.  Joint  Traffic  Asso.,  see  Joint  Traffic  Asso.  case. 
United  States  v.  Joint  Traffic  Asso.   (76  Fed.  895,  1   Fed.  Anti-Trust 

Dec.   615),   352,   389,   489. 
United   States  v.   Joint  Traffic   Asso.    (89   Fed.   1020,   32   C.   C.   A.   491, 

45  U.  S.  App.  726,   1   Fed.  Anti-Trust  Dec.  869),  352,  389,  489. 
United  States  v.  Joint  Traffic  Asso.   (171  U.  S.  505,  19  Sup.  Ct.  25.  43 

L.    Ed.   259,    1    Fed.    Anti-Trust   Dec.   869).    See   Joint   Traffic   As- 
sociation   Case. 
United   States   v.   Jones    (109   U.    S.   513,   27   L.    Ed.    1015.    3    Sup.    Ct. 

346).  7. 
United   States   z\   Ju   Toy    (198   U.    S.   253.   25    Sup.    Ct.   644,    49    L.    Ed. 

1040),    63. 
United  States  v.  Kellogg  Toasted  Corn  Flake  Co.  (222  Fed.  725),  487. 
United  States  7\  Kissell  (173  Fed.  823).  486. 


Table  of  Casf:s  Ciritn.  cvir 

[  References  are  to   Sections.  ] 

United  States  v.   Kissell   (218  U.  S.   601,  54   L.   Ed.   1168,  31   Sup.   Ct. 

124),  486. 
United  States  v.   Knight   &  Co.   (60   Fed.  30G,   1   Fed.  Anti-Trust   Dec. 

250),   486. 
United   States   v.   Knight   &   Co.    (60   Fed.   934,   9    C.   C.   A.   297,   24   h. 

R.  A.  428,   1   Fed.   Anti-Trust   Dec.   258),   486. 
United  States  v.  Knight  &  Co.  (156  U.  S.  1,  11,  39  L.  Ed.  325,  15  Sup, 

Ct.  249,   1   Fed.  Anti-Trust  Dec.  379,   387),  486. 
United  States  v.  Lake  Shore  &  M.  S.   R.   Co.   (203   Fed.   295),  486. 
United  States  v.  Lake   Shore   &  M.   S.   Ry.   Co.    (197  U.   S.   536,  49   L. 

Ed.   870,   25   Sup.    Cl,   538),   301,   432,   437,   441,    445. 
United  States  v.  Lehigh  Valley  R.  Co.  (115  Fed.  373),  335. 
United  States  v.  Lehigh  Valley  R.  Co.  (184  Fed.  546),  186,  371. 
United  States  v.  Lehigh  Valley  R.  Co.   (184  Fed.  971,  187   Fed.   1006), 

481. 
United  States  v.  Lehigh  Valley  R.  Co.   (225  Fed.  399),  63,  173. 
United  States  v.  Lehigh  Valley  R.  Co.   (220  U.  S.  257,  55  L.   Ed.  458, 

31  Sup.  Ct.  387),  63,  173,  186,  303,  343. 
United  States  v.  Louisville  &  N.  R.  Co.  (IS  Fed.  480),  481. 
United  States  v.   Louisville   &   N.   R.   Co.    (157   Fed.   979),  481. 
United  States  v.  Louisville  &  N.  R.  Co.   (212  Fed.  486),  220,  389,  437, 
United   States  v.   Louisville   &   N.   R.    Co.    (235  U.   S.   314,   59   L.    Ed. 

— ,    35    Sup.    Ct.    113),    154,    348. 
United   States  v.   Louisville   &  N.   R.    Co.    (236  U.   S.   318,   59   L.    Ed. 

— ,   35   Sup.   Ct.   363),  220,   310,   389. 
United  States  v.  MacAndrews  &  Forbes  Co.   (149  Fed.  823,  836),  493. 
United   States  v.   Martin   (176   Fed.   110),   342. 
United  States  v.  Matthews   (68  Fed.  880),  345. 
United  States  v.  Mellen   (53  Fed.  229),  348,  384. 
United  States  v.   Michigan  Cent.  R.  Co.   (43   Fed.  26),  371,  384. 
United   States  v.   Michigan   Cent.   R.   Co.    (122   Fed.   544),   64,  456,   459. 
United  States  z'.  Miller  (187  Fed.  375),  371. 
United  States  v.  Miller  (187  Fed.  369),  361. 
United  States  v.  Miller  (223  U.  S.  599,  56  L.  Ed.  568,  32  Sup.  Ct.  323), 

358,   364,   371. 
United  States  v.  Milwaukee   Rfgr.  Transit   Co.    (142   Fed.  247).  370. 
United  States  z\   Milwaukee   Rfgr.  Transit   Co.,  (145   Fed.   1007),   303, 

456. 
United  States  v.  Missouri  Pac.  Ry.  Co.   (65  Fed.  903.  5   L   C.   R.  106), 

389,   456. 
United   States   v.   Mooney    (116   U.    S.    104,   29    L.    Ed.   550,   6   Sup.    Ct. 

304),    307. 
United  States  v.   Morsman    (42   Fed.   448),   335. 
United  States  v.   Moseley   (187  U.   S.  322,  47   L.   Ed.   198.   23   Sup.   Ct. 

90),   418. 
United   States  v.   Motion   Picture   Patents   Co.    (225  U.  S.   800),   487. 
United  States  v.  N.  C.  8c  St.  L.  R.  Co.  (217  Fed.  254),  220. 


Gviii  Table  of  Cases  Cited. 

[  References  are  to   Sections.  ] 

United  States  v.  Naval   Stores   Co.   (172  Fed.  455),  486. 

United   States  v.   Naval   Stores   Co.    (186   Fed.   592),   486. 

United    States   v.   Nelson    (52    Fed.    646,    1    Fed.   Anti-Trust    Dec.   77), 

487. 
United  States  v.  New  Departure   Mfg.   Co.   (204  Fed.   107).   486. 
United  States  v.  New  York  C.  &  H.  R.  R.  Co.  (146  Fed.  298),  370. 
United  States  v.  New  York   C.   &  H.  R.  R.   Co.   (153  Fed.  630),  335, 

361,    371,    447. 
United  States  v.  New  York  C.  &  H.  R.  R.  Co.   (157  Fed.  293),  371. 
United  States  v.  New  York  C.  &  H.  R.  R.  Co.  (164  Fed.  324),  371. 
United  States  v.  New  York  C.   &  H.  R.  R.  Co.    (168  Fed.  699,  94  C. 

C.    A.   76),    483. 
United  States  v.  New  York  C.  &.  H.  R.  R.  Co.  (212  U.  S.  509,  53  L. 

Ed.    629,   29    Sup.    Ct.    313),    204,    371,    373. 
United  States  v.  Norfolk  &  Western  Ry.  Co.  (109  Fed.  831),  175,  445. 
United  States  v.  Norfolk  &  Western  Ry.  Co.  (114  Fed.  682),  445. 
United  States  v.  Norfolk  &  Western  Ry.  Co.   (138  Fed.  849),  445. 
United   States  v\   Norfolk    &  Western   Ry.   Co.    (143   Fed.   266,   74    C. 

C.  A.   404),   175,  445. 
United  States  v.  N.  P.  R.  Co.  (28  I.  C.  C.  518),  401. 
United  States  v.  Northern  Securities  Co.   (120  Fed.  721,  2  Fed.  Anti- 
Trust  Dec.  215),   58,  486. 
United  States  v.  Ohio  Oil  Co.   (Pipe  Line   Cases),  234  U.   S.  548,  58 

L.  Ed.  1394,  1459,  34  Sup.  Ct.  956),  65,  67,  335,  381,  486. 
United  States  v.  Oregon  R.  &  Nav.  Co.   (159  Fed.  975),  346. 
United  States  v.  Oregon  R.  &  Nav.  Co.  (210  Fed.  378),  58. 
United  States  v.  Oregon   R.   &  Nav.   Co.    (163   Fed.   640),  481. 
United  States  v.  Oregon  R.  &  Nav.  Co.  (163  Fed.  640),  481. 
United  States  v.  Oregon   S.  L.  R.  Co.   (160  Fed.  526),  481,  483. 
United  States  v.  Pacific  &  A.  R.  &  Nav.  Co.  (228  U.  S.  87,  57  L.  Ed. 

742,    33    Sup.    Ct.    443),    64,    145,    195,    241,    327,    383,    486. 
United  States  v.  Patten  (187  Fed.  664),  486. 
United  States  v.  Patten  (226  U.  S.  525,  57  L.  Ed.  333,  33  Sup.  Ct.  141), 

486. 
United   States  v.   Patter.^on   (55   Fed.   605,   640,   641,   1   Fed.   Anti-Trust 

Dec.    133,    176,    177),    487. 
United  States  v.  Patterson  (59  Fed.  280,  1  Fed.  Anti-Trust  Dec.  244), 

487. 
United  States  v.  Patterson   (201   Fed.  697),  486. 
United  States  v.  Patterson   (205  Fed.  292),  486. 
United  States  7'.  P.  R.  Co.  (153  Fed.  625),  361. 
United  States  v.  P.  M.  R.  Co.   (171  Fed.  586),  481. 
United  States  v.  P.  &  R.  Co.   (184  Fed.  543),  186,  371. 
United  States  V.  Philadelphia  &  R.  Co.  (223  Fed.  202),  481. 
United   States  v.  Pomeroy   (152  Fed.  279),  371. 
United  States  v.  Reading  Co.  (183  Fed.  427,  226  Fed.  229),  487. 


Table  of  Cases  Cited.  cix 

[  References  are  to   Sections.  ] 

United   .States  v.   Reading  Co.   (226  U.   S.  334,  57   L.   Ed.   243,   33   Sup. 

Ct.    90),    327,    48G,    489. 
United  States  v.   Reading   (228   U.   S.   158,   57   L.   Ed.   779,   33   Sup.   Ct. 

509),    486,    489. 
United  States  v.  St.  Louis  &  S.  F.  Ry.  Co.   (107  Fed.  870),  483. 
United  States  v.  St.  Louis,  L   M.   &  S.   R.  Co.    (177   Fed.  205,  101   C. 

C.  A.  375),  481. 
United  States  v^  Seaboard   Ry.   Co.    (82  Fed.   563),   335. 
United  States  ex  rel.   Int.  Com.   Com.  v.   Seaboard  Ry.  Co.   (85   Fed- 

955),    432. 
United  States  v.  Schurz   (102  U.  S.  378,  26  L.   Ed.   167),  301. 
United  States  v.  Sioux  City  Stock  Yards  Co.  (162  Fed.  556),  335,  337, 

481. 
United  States  v.  Skinner  (218  Fed.  870),  310,  390. 
United   States   v.    Southern    Pac.    Co.    (157    Fed.   459),   481. 
United  States  v.  Southern  Pac.  Co.   (162  Fed.  412).  481. 
United  States  v.  Southern  Whol.   Grocers'  Asso.   (207   Fed.   434),  486, 

489. 
United  States  v.  Standard  Oil  Co.   (148  Fed.  719),  371,  448,  449. 
United  States  v.   Standard   Oil   Co.   (152  Fed.   290),   307,   490. 
United  States  v.  Standard  Oil  Co.   (155   Fed.  305),   335,  361,  371. 
United   States   v.   Standard   Oil   Co.    (164   Fed.   376,   90   C.   C.   A.   364)., 

335,   448. 
United  States  v.  Standard  Oil   Co.   (170  Fed.  988),   371. 
United  States  v.  Standard  Oil   Co.   (173  Fed.   177),   486. 
United   States  v.   Standard   Oil   Co.    (183   Fed.  .223),   371. 
United  States  v.  Standard  Oil  Co.   (192  Fed.  438),  186,  371. 
United  States  v.  Standard  Sanitary  Mfg.   Co.   (191  Fed.   172),  486. 
United  States  v.  Stearns  Salt  &  Lumber  Co.   (165  Fed.  735),  371. 
United   States  v.  Sterling  Salt   Co.   (200   Fed.  593),  371. 
United  States  v.  Sunday  Creek  Co.  (194  Fed.  252),  138,  371. 
United   States  v.  Sunday   Creek   Co.   (210   Fed.  747),   138. 
United   States  v.  Swift   &   Co.    (122   Fed.   529,   2   Fed.   Anti-Trust   Dec. 

237),   2,   469,   486. 
United   States   v.   Swift    (188   Fed.   92),   486. 
United  States  v.  Terminal  R.   R.  Asso.   (224  U.  S.  383,  56  L.   Ed.  810, 

31    Sup.    Ct.    507),    486. 
United  States  v.  Tozer  (37  Fed.  635,  2  L.  R.  A.  44),  371,  384. 
United  States  v.  Tozer   (39  Fed.  369),  345,  384. 
United    States    v.    Tozer    (39    Fed.    904),    345. 
United   States  v.   Trans-Missouri   Freight   Asso.    (53   Fed.   440,    1   Fed. 

Anti-Trust    Dec.    80),    352,    486. 
United  States  v.  Trans-Missouri  Freight  Asso.    (58   Fed.   58,   7   C.   C. 

A.  15,  97,  24  L.  R.  A.  73,'  1  Fed.  Anti-Trust  Dec.  186),  352,  486. 
United  States  v.  Trans-Missouri  Freight  Asso.   (166  U.  S.  290,  41  L. 

Ed.   1007,   17   Sup.   Ct.   540,   1   Fed.   Anti-Trust   Dec.   648),   92,   327., 

352,    486. 


ex  Table  of  Cases  Cited. 

I  References  are  to   Sections.  ] 

United  States  v.  Union  Bridge  Co.   (143  Fed.  377),  53.       ' 

United   States   v.   Union    Pac.    R.   Co.    (169   Fed.   6.5,   94   C.   C.   A.   438), 

481. 
United  States  v.  Union  Pac.   R.   Co.   (188   Fed.   102),  481,  486. 
United  States  v.  Union   Pac.   R.   Co.   (213   Fed.   332,  —  C.   C.  A.  — ), 

481. 
United  States  v.  Union  Pac.   R.   Co.   (160  U.  S.   1,   16  Sup.   Ct.   190,  40 

L.   Ed.  319),   302. 
United  States  v.  Union  Pac.  R.  Co.   (226  U.  S.  61,  .57  L.   Ed.  124,  33 

Sup.    Ct.    53),    327,    486. 
United  States  v.  Union  Stock  Yards  of  Omaha   (161   Fed.  919),   335. 
United    States    v.   Union    Stock   Yards    Co.    (192    Fed.    330),    66,    221, 

345,    358. 
United  States  v.  Union  Stock  Yards  &  Transit  Co.  (226  U.  S.  286,  57 

L.   Ed.  226,  33   Sup.   Ct.  83),   10,   13,   41,  66,   186,   221,  345,  358. 
United  States  v.  Vacuum  Oil  Co.   (153  Fed.  598),  358,  371. 
United   States  v-  Vacuum  Oil  Co.   (158   Fed.   536),  361,  371. 
United  States  r.   Virginia-Carolina   Chemical   Co.    (163   Fed.   66),  490. 
United   States   v.   Wells-Fargo   Ex.   Co.    (161   Fed.   606),  ^03,   335,   342. 

371,    442. 
United  States  v.  West  Va.  N.  R.  Co.   (125  Fed.  252),  175,  445. 
United  States  v.  Whelpley    (125   Fed.   617),   58. 
United   States  v.  Whiting   (212  Fed.  466),   486. 
United   States  v.  Winslow   (195  Fed.  578),  486. 
United  States  v.  Winslow   (227  U.   S.  202,  57   L.   Ed.  481.  33   Sup.   Ct. 

253),   486. 
United   States   v.   Wood    (145    Fed.    405),   67,   68,   335,   358,   371. 
United    States    v.    Workingman's    Amalg.    Council    (54    Fed.    994,    26 

L.  R.  A.  158,  1  Fed.  Anti-Trust  Dec.  110),  486,  489. 
United  States  Button  Co.  z:  C.  R.  I.  &  P.  Co.  (32  I.  C.  C.  149),  401. 
United   States   Cons.   Seeded   Raisin    Co.  v.   Grififin    (126   Fed.   364,   61 

C.  C.  A.  334.  2  Fed.  Anti-Trust  Dec.  288),  486. 
United  States  Ex.  Co.  v.  Minnesota  (223  U.  S.  335,  56  L.   Ed.  459,  32 

Sup.    Ct.    211).   59. 
United   States   Ex.   Co.   <•.   State   (164   Ind.   196.   73   X.   E.   101),   8. 
United    States    Fire    Escape    Co.    z:    Joseph    Halsted    Co.    (195    Fed. 

295),    486. 
United   States   Leather   Co.  v.   S.   R.   Co.    (21    I.    C.    C.   323).   105,   392. 

399. 
United  States  Tel.   Co.  v.   Central  Union  Tel.   Co.   (171  Fed.   130,  202 

Fed.    66,    122    C.    C.    A.    86),    486. 
United  States  Tobacco  Co.  z\  American  Tobacco  Co.   (163   Fed.  701). 

486. 
Updike  Grain  Co.  v.  N.  P.  R.  Co.  (178  Fed.  223,  101  C.  C.  A.  .583),  168, 

337,  346. 


Tap.uc  ok  Cases  Citkd.  cxi 

[  References  are  to   Sections.  ] 
V. 

Vance  v.  Vandercook  Co.   (170  U.  S.  438,  42  L.   Ed.   1100,  is   Sup.   Ct. 

674),    58. 
Van  Patten  r.  Chicago,  M.  &  St.  P.  R.  Co.  (74  Fed.  981),  294,  307,  383. 
Van  Patten  v.   Chicago,  M.   &  St.   P.  R.   Co.    (81   Fed.   r)4.5),  294,  307, 

339,  383. 
Venus  V.  St.  Louis,  I.  M.  &  S.  R.  Co.   (15  I.  C.  C.   136).  218,  383,  408. 
Victor   Fuel   Co.  v.   Atchison,  T.   &  S.   F.   Ry.   Co.   (14   I.   C.   C.   119), 

358. 
Victor  Mfg.  Co.  v.  So.  Ry.  Co.   (21   I.  C.   C.  222).  399. 
Victor  Mfg.  Co.  v.  So.  Ry.  Co.   (27  I.  C.  C.  661),  105,  383. 
Village  of  Goodhue  r.  Chicago  G.  W.  Ry.  Co.   (11  I.  C.  C.  683),  346. 

348. 
Virginia  v.  Atlantic  C.  L.  R.  Co.  (106  Va.  61,  55  S.  E.  572,  7  L.  R.  A. 

(N.  S.),  1086),  442. 
Virginia-Carolina  Chem.  Co.  v.  C.  R.  &  P.  R.  Co.  (18  I.  C.  C.  3),  253. 
Virginia-Carolina  Chem.  Co.  v.  St.  L.  I.  M.  &  S.  R.  Co.   (18  I.  C.  C. 

1),  96,  253. 
A^irginia  Rate  Case   (211  U.  S.  210,  53  L.  Ed.  150,  29  Sup.   Ct.  67),  See 

Prentis  v.  A.   C.   L.   R.   Co. 
Virtue   v.    Creamery   Package    Mfg.    Co.    (179    Fed.    115,    102   C.    C.    A. 

413),    486. 
Virtue   Creamery   Package   Mfg.   Co.    (227   U.   S.   8,   57   L.    Ed.   393,   33 

Sup.    Ct.    202),    486. 
Vulcan  Coal  &  Mining  Co.  z'.  111.  C.  R.  Co.   (33  I.  C.   C.  52).   174,   175, 

198,  346. 

W. 

Wabash,  St.  L.  &  P.  R.  Co.  v.  Illinois  (118  U.  S.  557,  30  L.  Ed.  244. 

1   I.    C.    R.   31,   7    Sup.    Ct.   4),   43. 
Wabash   R.   Co.  z'.  Sloop   (200  Mo.  198,  98   S.  W.  607),  383. 
Wabash  R.  Co.  v.  United  States   (178  Fed.  5,  101  C.  C.  A.  133),  481. 
Waco   Freight   Bureau  v.   H.   &  T.   C.   R.   Co.    (19   I.   C.   C.  22),  266. 
Wadley  So.  Ry.   Co.  v.  Georgia   (235   \J.  S.  651,  59  L.   Ed.  — ,  35   Sup. 

Ct.    214),    17,    442. 
Wadley  So.  Ry.  Co.  r.  State   (137   Ga.  497,  73   S.   E.   741),   14.   17. 
Wallingford  v.  A.  T.  &  S.  F.  R.  Co.   (30  I.  C.  C.  19),  383. 
Wall   V.   N.   &  W.    R.    Co.    (52  W.   Va.   485,   44   S.    E.   294.   64    L.    R.   A. 

501),    42. 
Walsh   V.   N.   Y.   N.  H.   &  H.   R.   Co.   (173   Fed.   694),   293. 
Ware-Kramer   Tobacco   Co.   v.  Am.   Tob.   Co.    (178   Fed.   117),   492. 
Ware-Kramer  Tob.   Co.  v.  Am.   Tob.    (180   Fed.   160),   486. 
Warnock  v.   C.    &   N.   W.   R.   Co.    (21    I.    C.    C.   546).   266. 
Warren   Mfg.   Co.  v.  Southern   Ry.   Co.   (12   I.   C.   C.   381),  339.   486. 
Washer    Grain    Co.   v.   Missouri    Pac.    R.    Co.    (15    1.    C.    C.    147),   216, 

383,   387,   392,   394,   395,   40(J. 


cxir  Tablk  of  Cases  Cited. 

[  References  are  to   Sections.  ] 

Washington  Milling  Co.  v.  X.  &  W.  R.  Co.   (27  I.  C.  C.  546),  117. 
Waterhouse   v.    Comer    (55   Fed.    149,    19   L.    R.   A.   403,    1    Fed.   Anti- 
Trust   Dec.    119),    384.   486. 
Waters-Pierce   Oil   Co.   :•.   Texas    (48   Civ.   App.    163,   106   S.   W.   918), 

486. 
Waters-Pierce  Oil  Co.  v.  Texas   (212  U.  S.  86,  53  L.  Ed.  417,  29  Sup. 

Ct.   220),  486. 
Waters  Pierce  Oil  Co.  v.  United  States   (222  Fed.  69,  —  C.  C.  A.  — ), 

371. 
Watson  V.   Sutherland   (5  Wall   74,  72  U.  S.  74,  18  L.   Ed.  580),  303. 
Waxelbaum  v.  Atlantic  C.  L.  R.  Co.   (12  I.   C.   C.  178),  346. 
Wayman  v.  Southard   (10  Wheat.   23  U.   S.   1,  6  L.   Ed.   253),   54. 
W'eljer   Club   Intermountain   Fair   Asso.   7'.   O.    S.   L.   R.   Co.    (17   I.   C. 

C.   212),  442. 
Webster  Coal  &  Coke  Co.  i'.  Cassatt  (207  U.  S.  181,  52  L.  Ed.  160,  28 

S.  Ct.  108).  335. 
Webster  Grocer  Co.  v.  Chicago  &  N.  W.  R.  Co.  (19  I.  C.  C.  493).  117. 
Webster  Grocer  Co.  v.  C.  &  X.  W.  R.  Co.  (21  I.  C.  C.  20),  214. 
Weeks   v.   United    States    (232  U.   S.   383,'  58   L.    Ed.    652,   34   Sup.    Ct. 

341),    310. 
Weems    Steamboat    Co.    v.    People's    Co.    (214    U.    S.    345,    53    L.    Ed. 

1024,   29    Sup.    Ct.    661),    139,   327,    346. 
Weil  V.  Penn.  R.  Co.  (11  I.  C.  C.  627),  181,  346. 
Weinman    r.    De    Palma    (232   U.    S.    571,    58    L.    Ed.    733.    34    Sup.    Ct. 

370),   208. 
Weisert   Bros.   Tobacco   Co.   z:  Am.   Tob.    Co.    (163   Fed.   712),   486. 
Weleekta  Light  &  Water  Co.  z:  Ft.  S.  &  W.  R.  Co.  (12  L  C.  C.  503). 

344. 
W>lls,    Fargo    &-    Co.    v.    Neiman-Marcus    Co.    (227    U.    S.    469.    57    L- 

Ed.  600,  33  Sup.  Ct.  267,  125  S.  W.  614),  295,  439. 
Wells-Fargo  Ex.   Co.  v.  United  States   (212  U.   S.   522,   53   L.   Ed.  635. 

29    Sup.    Ct.    315).    346. 
Wells-Higman   Co.  v.  G.   R.   &  I.   R.   Co.   (19   I.   C.   C.  487),   117. 
Welton  T'.   Missouri    (91  U.  S.   275,  23  L.   Ed.   347),  3,  29. 
Werner  Saw  Mil!  Co.  v.  111.  C.  R.  Co.   (17  I.  C.  C.  388),  218. 
West    Chicago   St.    R.    Co.   z:    Chicago    (301    U.    S.    506,   50   L.    Ed.   845. 

26   Sup.    Ct.   518),   54. 
West  End   Improvement  Chb  ?•.   O.   &   C.   B.   St.   R.   Co.    (17   I.   C.   C. 

239),  66,  337,  400. 
Western  &  A.   R.   Co.  v.  Summerour   (139   Ga.   545,  77   S.   E.   802),  25. 
Western  &  A.  R.  Co.  v.  White  Provision  Co.  (—  Ga.  — ,  82  S.  E.  644), 

405. 
Western  Classification   (25  I.  C.   C.  4'.2),  81,  88,  90.   161,  102,  341. 
Western    New   York    &    P.    R.    Co.    v.    Penn    Refining    Co.    (137    Fed. 

343,   70   C.    C.   A.  23),   317,   335,   383,   389.   406,   407. 
Western  New  York  &  P.  R.  Co.  v.  Penn  Refining  Co.   (208  U.  S.  208, 

52   L.    Ed.   456.   28   Sup.   Ct.   268),    317,   335. 


Taulk  of  Cases  Citkd.  cxiii 

I  References  are  to   ."sections.  ] 

Western  Oregon  Luml)er  Mfrs.  Asso.  7'.  So.  Pac.  Co.  (14  I.  C.  C.  61), 

101,   222,   395. 
Western  Rate  Advance  Case  1915   (35   1.   C.  C.  197),  81,  82,  88,  91,  99. 

113,    115,    163,    233,    259,    260,    398. 
Western  Trunk  Line  Rules   (34  I.  C.  C.  554),  161,  341. 
Western  Union   Tel.   Co.   v.   Call   Pub.   Co.    (181   U.   S.  92.   45   L.    Kd. 

765,  31  Sup.   Ct.  561),  61,  62,  64,  128,   133,  339,  346,  383. 
Western    Union   Tel.    Co.   v.   Chiles    (214   U.   S.   274.   53    L.    Ed.   994,   29 

Sup.    Ct.    613),    28. 
Western   Union   Tel.   Co.   v.   Commercial    Milling   Co.    (218   U.   S.   403. 

54    L.    Ed.    1088,    3]    Sup.    Ct.    59),    2,    28. 
Western  Union  Tel.  Co.  v.  Compton   (Ark.)    (169   S.  W.  946),  340. 
Western  Union   Tel.   Co.  v.   Crovo    (220   U.   S.   364,   55   L.    Ed.   498,   31 

Sup.   Ct.   399),   2,   28. 
Western  Union   Tel.   Co.  v.   First   Nat.    Bank   of   Berryville    (83   S.    E. 

424),    340. 
Western  Union  Tel.   Co.  v.  James   (162  U.   S.  650.  40  L.   Ed.   1105,   16 

Sup.    Ct.    934),    3,  "5,    28. 
Western  Union  Tel.   Co.  v.   Kansas   (216  U.   S.   1,  54  L.   Ed.   355,   30 

Sup.   Ct.   190),   8,   59. 
Western  Union  Tel.  Co.  v.  Pendleton   (122  U.  S.  347,  30  L.   Ed.  1187, 

7  Sup.   Ct.   1126),  2.  28. 
Western   Union  Tel.   Co.  v.   Penn.   R.   Co.    (195   U.  S.   540,  49   L.   Ed. 

312,  25   Sup.   Ct.    133.   1   Ann.    Cas.   517),   7. 
Western   Union  Tel.   Co.  v.  Texas   (105  U.  S.  460,  26  L.   Ed.  1067);  2. 
Westheimer  v.  Weisman   (8  Kan.  App.  78,  54  Pac.  332),  58. 
Westinghouse   Air   Brake   Co.  v.   Great   N.   Ry.    Co.    (88   Fed.   258,   31 

C.    C.    A.    525),    307. 
West  Virginia  N.  R.  Co.  v.  United   States   (134  Fed.   198,  67   C.   C.  A. 

220),    175,    445. 
Weyl-Zuckerman  Co.  v.  C.  M.   R.  Co.   (27  I.  C.  C.  493).  402. 
Weyman-Bruten  Co.  v.  Old  Indian  Snufif  Mills  (197  Fed.  1075),  486. 
Wharfage   Facilities   Pensacola   (27   I.   C.   C.   252),   375. 
Wharton  Steel  Co.  v.  D.  L.  &  W.  R.  Co.   (25  I.  C.  C.  303),  398. 
Wheat  Rates  From  Oklahoma  (30  I.  C.  C.  93),  91. 
Wheeler  Lumber  Bridge  Supply   Co.  v.  A.  T.   &  S.   F.   R.  Co.   (30   L 

C.    C.   343).    121. 
Wheeler  Lumber  Bridge   &   Sup.   Co.  v.  A.  :&  C.   R.   Co.   (20   T.   C.   C. 

10),  207. 
Wheeler-Stenze'   Co.  v.   National   Window   Glass  Jobliers'   Asso.    (152 

Fed.   864,  81   C.   C.   A.   658).   492. 
Whitcomb  \>.  C.  &  N.  W.  Ry.  Co.  (15  1.  C.  C.  27).  89. 
White  V.  Mich.  Cent.  R.   Co.   (3  1.  <!.  C.  281,  2  L  C.  R.  641),  392. 
White  V.  W.  U.  Tel.   Co.    (33   1.   C.   C.  500).  335,  340. 
White  Bros.  v.  A.  T.  &  S.  F.  R.  Co.  (17  L  C.  C.  288),  117. 
White    Dental    Mfg.    Co.   v.    Mass.    (212    Mass.    35,    98    N.    \\.    lO.")!'),    2S 

Am.    St.    2,    Ann.    Cas.    805),    59. 


cxiv  1\\i!LK  OF  Casks  Cited. 

I  References  are  to   Sections.  ] 

Whiteland  Canning  Co.  v.  P.  C.  C.  &  St.  L.  R.  Co.   (2a  I.  C.  C.  92). 

254. 
VVhitwell    V.    Continental    Toh.    Co.    (125    Fed.    454,    60    C.    C.    .\.    290. 

64  L.   R.  A.  689.  2  Fed.  Anti-Trust  Dec.  271),  487.  492. 
Wholesale   Fruit   &  Producers'  Asso.   v.   Atchison.  T.   &   S.   F.   R.   Co. 

(14    I.    C.    C.   410),    111,   395. 
Wichita  Board  of  Trade  v.  A.  T.   &  S.   F.   R.   Co.    (25   I.   C.   C.   625). 

398. 
Wichita  Falls  System  Joint  Coal  Rates  (26  I.  C.  C.  215),  338,  346,  400. 
Wickwire  Steel  Co.  v.  N.  Y.  C.  &  H.  R.  Co.  (30  I.  C.  C.  415).  392,  398. 
Wight   V.   United    States    (167   U.    S.   512,    42    L.    Ed.   258,   17    Sup.    Ct. 

822),   13,   137,   139,   345. 
Wilcox  V.  Consolidated  Gas  Co.  (212  U.  S.  19.  53  L.  Ed.  382.  29  Sup. 

Ct.  192.  15  Am.  Cas.  1034),  47,  49,  50,  82. 
Wilhoit  V.  Missouri,   K.   &  T.   Ry.   Co.   (12   I.   C.    C.   138).   339. 
Wilkes-Barre   v.   Spring   Brook   Water    Co.    (4    Lack.    Pa.    Leg.    News 

367).    46. 
Williams    v.    Talladega    (226    U.    S.    404.    57    L.    Ed.    275,    33    Sup.    Ct. 

116),    7. 
VVillson  V.  Rock  Creek  Ry.  Co.   (7  L  C.  C.  83),  66,  335.  345. 
Wilmington   Tariff   Asso.   v.    Cincinnati.    Portsmouth,    etc.,    R.    Co.    (9 

L    C.    C.    118),    346,    348. 
Wilmington   Trans.    Co.   v.    R.    R.    Com.    of    Calif.    (236   U.    S.    151.    59 

L.    Ed.   — ,    35    Sup.    Ct.    276).    53.    55. 
Wifson  V.   Blackbird  Creek  Marsh   Co.   (2   Pet.  27  U.  S.  245,  7  L.   Ed. 

412),    54. 
Wilson  V.   Chicago,   M.   &  St.   P.   Ry.   Co.    (14   L    C.   C.   549).   383. 
Wilson  Produce   Co.  v.  P.  R.  Co.   (14  L   C.   C.  170),   10.  25. 
Wilson  Produce  Co.  v.  P.  R.  Co.  (16  L  C.  C.  116).  25. 
Wilson  V.   United    States    (221   U.   S.   361.   55   L.   Ed.   771,   31    Sup.    Ct. 

538),  311. 
Winchester    &    Strasburg    R.    Co.    et    al.    v.    Commonwealth    (106    Va. 

264,   55   S.    E.   692),   63. 
Windsor  Turned  Goods  Co.  v.  C.  &  O.  R.  Co.  (18  L  C.  C.  162).  117. 
Winona  &  St.  Paul  R.  Co.  v.   Blake   (94  U.   S.  180,  24  L.   Ed.  99).  45. 
Winona  Carriage  Co.  v.  P.  R.  Co.  (18  L  C.  C.  334),  117. 
Winsor  Coal  Co.  v.  Chicago  &  A.  R.  Co.  (52  Fed.  716).  383. 
Winters   Metallic   Paint    Co.   v.   C.    M.    &   St.    P.   R.    Co.    (16   L    C.    C. 

687).    192,    344. 
Wisconsin  &  Ark.  Lumber  Co.  v.   St.  L.  L  M.  &  S.  R.  Co.   (33  L  C. 

C.   33).   346. 
Wisconsin   Cent.   Ry.   Co.  v.  United   States    (169   Fed.   76.  94   C.   C.  A. 

444),   371,   481. 
Wisconsin   M.   &   P.   Co.   v.   Jacobson    (71    Minn.   519).   49. 
Wisconsin   M.   &  P.   Co.  v.  Jacobson    (179  U.   S.  287.   45   L.    Ed.   194. 

21    Sup.   Ct.   115).   13.  14.  49,   148,  316,   344,  396. 


Tahli';  ()!•  Casi:s  Citi'.i).  cxv 

f  References  are   to   Sections.  ] 

Wisconsin  State  Millers'  Asso.  v.  C.  M.   &  St.   P.  R.   Co.   (23  I.   C.   C. 

494),  399. 
Wisconsin   Steel   Co.  v.   P.   &  L.   E.   R.   Co.   (27   I.   C.   C.   152),  99. 
Wisewall.  The   Chas.   E.    (74  Fed.   802,   1   Fed.   Anti-Trust   Dec.   608), 

486. 
Wisewall.  The  Charles  E.   (86  Fed.  671,  30  C.  C.  A.  339,  1   Fed.  Anti- 
Trust    Dec.    850),    486. 
Wolverhampton    &   W.    R.    Co.   v.    London   &   N.   W.    Ry.    Co.    (43   L. 

J.    Ch.    131,    L.    R.    16,    Eq.    433),    304. 
Wood  V.  Vandalia  R.   Co.   (231  U.  S.  1,  58  L.   Ed.  97,  34   Sup.   Ct.   7), 

45,    84. 
Woodward-Bennett  Co.  v.  S.  P.  L.  A.  &  F.  R.  Co.  (29  I.  C.  C.  664), 

116. 
Woodward  &  D.  v.  Louisville  &  N.  R.  Co.   (15  L  C.  C.  170),  218,  383. 
Worcester  Excursion  Co.  v.  Penn  R.   Co.   (3   L  C.  C.  577,  1   L   C.   R. 

811.  2  L  C.  R.  12.  792),  197.  345. 
Workingman's   Amal.   Council  v.   United   States    (57   Fed.   85,    6   C.   C. 

A.   258,   1    Fed.   Anti-Trust   Dec.    184),   489. 
Worn  V.  B.   &  L.   R.  Co.   (32  L   C.  C.   58). 

Wright  Wire   Co.  v.  P.   &  L.   E.  R.   Co.    (21   L   C.  C.   64),  244.  348. 
Wrigley  v.  Cleveland,  etc.,  R.  Co.   (10  L  C.  C.  412),  345. 
Wylie   T'.    Northern    Pac.    R.    Co.    (11    L    C.    C.    145),    335,    337. 


Yawman  &  Erhe  Mfg.  Co.  v.  A.  T.  &  S.  F.  R.  Co.  (15  L  C.  C.  260),  81. 
Yazoo   &   M.   V.   R.   Co.  v.   Greenwood   Grocery   Co.    (227  U.   S.   1,   57 

L.   Ed.  389,   33   Sup.   Ct.  213,   96   Miss.  403,   51   So.   450),  25. 
Yazoo  &  M.  V.  R.  Co.  v.  Jackson  Vinegar  Co.   (226  U.  S.  217,  57  L. 

Ed.    193,   33   Sup.    Ct.   40),   34,   45. 
Yazoo    &    M.    V.    R.    Co.    z\    Keystone    Lumber    Co.    (90    Miss.    391,    43 

So.    605),    25. 
Yellow    Taxicab    Co.    z:    Gaynor    (82    Misc.    R.    94,    143    N.    Y.    Sup. 

279),   25. 
York    Mfg.    Co.   v.    L    C-    R.    Co.    (3   Wall.,    70   U.    S.    107,    18    L.    Ed. 

170),   34,    35,    40. 
Young,   Ex  parte   (209    U.   S.   123,  52  L.    Ed.   714,  28   Sup.   Ct.  441),   50. 

60,   63,   453. 

z. 

Zakonaite  ?■.  Wolf   (220  U.  S.  272,  57   L.   Ed.  218,  33   Sup.   Ct.  31),  316, 

396. 
Zeterberg  v.  G.  N.   R.   Co.   (117   Minn.  495,  136   N.  W.   295),  25. 


Shippers  and  Carriers  of  Interstate  and 
Intra^ate  Freight 


CHAPTER  I. 

State  Regulation  of  Carriers  Engaged  in  Interstate  Com- 
merce. 

§     1.  Scope  of  Chapter. 

2.  Interstate  Commerce  Defined. 

3.  Power    of    Congress    Exclusive,    When. 

4.  Power    of    the    States    Indirectly    to    Affect    Interstate    Com- 

merce. 

5.  Commerce   Exclusively   Within   the   Control   of   the   States. 

6.  All   Commerce   Subject   to   Regulation. 

7.  Eminent  Domain. 

8.  States  May  Establish  Means  for  Interstate  Transportation. 

9.  Regulation    of    Facilities — Depots. 

10.  Regulation   of   Facilities — Terminal   Roads. 

11.  State  Laws   Forbidding  the   Consolidation  of   Competing  Car- 

riers. 

12.  Regulation   of   Facilities — Spur   Tracks. 

13.  Requiring    Physical    Connections    Between    Carriers. 

14.  Delivery  over  Connecting  Tracks. 

15.  Regulating  Crossings. 

16.  Elevator   Charges. 

17.  Through  Routes  and  Joint  Rates. 

18.  Regulation   of  the  Movement   of  Trains.      Sunday   Law. 

19.  Same  Subject.     Requiring  the  Operation  of  a  Particular  Train. 

20.  Same   Subject.      Speed   of  Trains. 

21.  Same   Subject.     Requirement  That  Trains   Shall   Stop  at   Par- 

ticular Stations. 

22.  State   Regulation   of  Carriers  and   Their   Employees. 

23.  Blowing    Whistle    and     Checking    Speed      at   Crossings. 

24.  Furnishing  Cars  for  the  Receipt  and  Delivery  of  Shipments. 
-25.     Same   Subject.     Rule   Since   Hepburn   Act. 

26.  Same   Subject.      Rule    Established. 

27.  Requirements    as    to   Accounting   and    Reports. 

28.  Transmission  and  Delivery  of  Telegraph  and  Telephone  Ales- 

sages. 

29.  Separate   Coach   Laws. 

-1  1 


2  State  Regulation  [§  1. 

30.  Posting  Time   of  Trains. 

31.  Laws  to  Promote  the  Security  and  Comfort  of  Passengers. 

32.  Laws  Limiting  or  Enlarging  the  Common  Liability  of  Carriers. 

33.  Same  Subject.     Liability   to   Employees. 

34.  Same  Subject.     Liability  for  Loss  or  Damage  to  Shipments. 

35.  Penalties  for  Failure  to  Pay  Claim. 

36.  Requiring  Railroads  to  Perform  Transportation   Service. 

37.  Sale    and    Regulation    of    Passenger    Tickets. 

38.  Same  Subject.     Mileage  Books. 

39.  Free  Transportation. 

40.  Routing  Freight. 

41.  When  Interstate  Transportation  Begins  and  Ends. 

42.  Attachments   and    Garnishments. 

43.  Rates. 

44.  Intrastate    Rates    Which    Affect    Interstate    Rates. 

45.  Limitations    on    the    Power    of    States    to    Regulate    Intrastate 

Rates. 

46.  Property  Basis  for  Returns. 

47.  When   -Does    a    Rate    Violate    Rights    under    the    Fourteenth 

Amendment? 

48.  Rates.     Evidence   That  a   Rate   Is    Confiscatory.     Rates   on  a 

Few    Commodities. 

49.  Same    Suliject.      Relative    Cost    of    Different    Kinds    of   Trans- 

portation. 

50.  Testing  a  Rate  by  Use  to  Determine  Whether  or  Not   It   Is 

Confiscatory. 

51.  Issuance   of   Stocks   and    Bonds. 

52.  Long  and   Short   Haul. 

53.  Ferries. 

54.  Bridges. 

55.  Regulating   Charges  for  Transportation   by  Water. 

56.  Regulating    Pilotage.    Ports,    Harliors    and    \'essels. 

57.  Boards   of  Trade  and   Exchanges. 

58.  Inspection.      Quarantine,    Game,    Food,    Liquor,    and    Lottery 

Laws. 

59.  Taxation,    Including   License   Taxes. 

60.  Procedure   to   Test   the   Validity   of   State    Regulations. 

§  L  Scope  of  Chapter. — Paragraph  3,  Section  8,  Article  1, 
of  the  Constittition  of  the  United  States  contains  the  grant  of 
power  to  Congress  over  interstate  commerce  and  gives  Congress 
the  power  "to  regulate  commerce  with  foreign  nations,  among 
the  several  states,  and  with  the  Indian  tribes." 

It  is  not  the  purpose  of  this  book  to  treat  of  the  subject  of 
interstate  commerce  in  its  widest  scope,  the  work  being  confined 
to  a  discussion  of  the  rights  and  duties  of  shippers  and  carriers. 
To  determine  what  these  rights  and  duties  are  it  is  necessarv  to 


§  2.]  Affecting  Interstate  Com  fierce.  3 

discuss  what  is  interstate  commerce,  when  a  carrier  is  engaged 
therein,  and  to  what  regulations  an  interstate  carrier  is  subject. 
That  such  carrier  may,  as  to  that  portion  of  its  business  which 
is  within  a  particular  state,  be  subjected  to  some  state  regulation 
is,  imder  the  present  law^s  of  Congress,  indisputable.  The  extent 
of  this  regulation  by  the  state  is  the  subject  of  this  chapter. 

It  may  be  said,  as  a  general  rule,  that  the  proper  state  author- 
ities, duly  acting,  may  pass  all  reasonable  laws  for  the  regula- 
tion of  the  health,  happiness  and  safety  of  its  citizens;  and  such 
laws  and  regulations  are  not  invalid  merely  because  they  may 
incidentally  affect  interstate  commerce.  It  may  be  further  stated 
that  the  mere  existence  of  power  in  Congress  to  regulate  inter 
state  commerce  does  not  exclude  the  states  from  the  exercise  of 
power  over  such  commerce.  In  the  absence  of  congressional 
legislation,  or  in  the  absence  of  action  by  the  Interstate  Commerce 
Commission  where  the  matter  has  been  delegated  to  it,  states  may 
legislate  aft'ecting  interstate  commerce. 

§  2.  Interstate  Commerce  Defined.- — Interstate  commerce, 
as  defined  in  the  Constitution  of  the  United  States,  is  commerce 
"among  the  several  states,"  but  the  Constitution  does  not  define 
commerce.  \\  hat  "commerce"  includes  can  not  be  definitely 
stated  or  limited.  Its  primary  meaning  is  traffic,  purchase  and 
sale,  but  it  means  also  intercourse,  interchange  or  mutual  ex- 
change of  commodities.  It  includes  the  carrying  by  independent 
carriers  of  things  or  commodities  which  are  ordinarily  the  sub- 
ject of  traffic  and  which  have  in  themselves  a  recognized  value  in 
money.  This  intercourse  includes  all  the  preliminary,  interven- 
ing and  consummating  acts,  instrumentalities  and  dealings  that 
bring  about  the  sale  or  exchange  of  commodities.  It  embraces 
transportation  by  land  and  water  and  the  means  and  appliances 
necessary  thereto,  including  transportation  of  persons  and  prop- 
erty.^    The  transmission  of  intelligence  by  telegraph  or  telephone 

'  Gibbons   v.     Ogden,   9   Wheat.  United   States  z:  Swift  &  Co.,  122 

22  U.  S.  1,  6  L.  Ed.  23  (1824);  Fed.  .529,  modified  and  subject 
Lottery  case,  Champion  v.  Ames,  discussed,  Swift  &  Co.  z\  United 
188  U.   S.  321,  34.5.  47   L.   Ed.  492,  States,    196    U.    S.    375,   49    L.    Ed. 

23  Sup.  Ct.  321;  Simpson  et  al,  518,  25  Sup.  Ct.  276.  For  a  dis- 
R.  R.  Com.  of  ^Minnesota  v.  Shep-  cussion  of  what  transportation  is 
ard  ("Minnesota  Rate  Cases")  included  within  the  provisions  of 
230  U.  S.  352,  57  L.  Ed.  1511,  33  the  Act  to  Regulate  Commerce, 
Sup.     Ct.     729,    and     cases     cited;  see,   post,   Sec.   67. 


State  Regulation 


:§  3. 


is  an  agency  of  commerce  and  intercommunication.  The  powers 
of  Congress  over  interstate  commerce  must  "keep  pace  with  the 
progress  of  the  country,  and  adapt  themselves  to  the  new  develop- 
ment of  time  and  circumstances.-  The  decisions  in  the  White 
Slave  cases  ^  are  but  an  adaptation  to  modern  day  developments 
of  the  principles  stated  in  Gibbons  v.  Ogden,  Note  1  supra. 

§  3.  Power  of  Congress  Exclusive,  When. — Congress  alone 
has  power  directly  to  regulate  or  burden  interstate  commerce, 
and  as  to  such  direct  b.urden  or  regulation  the  power  of  Con- 
gress is  plenary,  all  pervading,  exclusive  and  indivisible.  In  the 
absence  of  federal  regulation  interstate  commerce  is  free  from 
regulation.  Says  ]\Ir.  Justice  Hughes  in  the  Minnesota  Rate 
Cases :  ^ 


^  Pensacola  Tel.  Co.  z'.  West- 
ern Union  Tel.  Co.,  96  U.  S.  1, 
9,  24  L.  Ed.  708;  Western  Union 
Tel.  Co.  v.  Texas,  105  U.  S.  460, 
26  L.  Ed.  1067;  Western  Union 
Tel.  Co.  r.  Pendleton,  122  U.  S. 
347,  30  L.  Ed.  1187,  7  Sup.  Ct.  1126; 
teaching  by  correspondence  schools 
commerce,  International  Text 
Book   Co.   T.    Pigg,   217   U.    S.   91, 

54  L.  Ed.  678,  30  Sup.  Ct.  481, 
but  see  the  opinion  of  a  state 
court  contra,  International  Text 
Book  Co.  z'.  Lynch,  81  Vt.  101,  69 
Atl.  541.  Shoemaker  v.  Chesa- 
peake &  Potomac  Tel.  Co.,  20  I. 
C.  C.  614,  regulation  by  Inter- 
state Commerce  Commission  of 
an  interstate  telephone  line;  Pos- 
tal Tel.-Cable  Co.  z:  City  of  Mo- 
bile, 179  Fed.  955,  960,  "telegraph 
business  is  commerce.'"  ^Messages 
passing  from  one  state  to  another 
is  interstate  commerce  and  sub- 
ject to  Federal  and  free  from 
state-  regulation,  Western  Union 
Tel.   Co.   z:   Crovo.  220  U.   S.   364. 

55  L.  Ed.  498,  31  Sup.  Ct.  399; 
Western  Union  Tel.  Co.  v.  Com- 
mercial Milling  Co..  218  U.  S.  403. 
54  L.  Ed.  1088.  31  Sup.  Ct.  59,  af- 


firming Commercial  Milling  Co. 
Z-.  Western  Union  Tel.  Co.,  151 
Mich.  425,  115  N.  W.  698.  In- 
surance is  not  commerce,  Xew 
York  Life  Ins.  Co.  v.  Deer  Lodge 
County,  231  U.  S.  495,  58  L.  Ed. 
332,  34  Sup.  Ct.  167  and  cases 
cited. 

'  Hoke  V.  United  States,  227  U. 
S.  308,  57  L.  Ed.  523,  33  Sup. 
Ct.  281,  43  L.  R.  A.  (N.  S.),  906, 
Ann.  Cas.  1913E  905;  x^thanasaw 
V.  United  States,  227  U.  S.  326. 
57  L.  Ed.  528,  33  Sup.  Ct.  285; 
Ann.  Cas.  1913E.  911;  Bennett 
r.  United  States,  227  U.  S.  333, 
57  L.  Ed.  531.  33  Sup.  Ct.  288; 
Johnson  r.  United  States,  215 
Fed.  679.  That  a  state.  Congress 
having  acted,  may  not  forbid  the 
importation  of  women  for  im- 
moral purposes,  is  held  in  State 
z\  Harper.  48  Mont.  456,  138  Pac. 
405.    51    L.    R.   A.    (X.    S.),    157. 

*  Simpson  et  al.,  R.  R.  Com.  of 
Minnesota  t'.  Shepard,  230  U.  S. 
353,  399,  57  L.  Ed.  1151,  33  Sup. 
Ct.  729,  citing  McCulloch  v.  Mary- 
land, 4  Wheat..  17  U.  S.  316. 
405,  426.  4  L.  Ed.  579:  The  Daniel 
Ball,    10   Wall.    77   U.    S.   557.   565. 


§  3.]  Affecting  Interstate  Comaierce.  5 

"There  is  no  room  in  our  scheme  of  government  for  the  asser- 
tion of  state  power  in  hostiUty  to  the  authorized  exercise  of  fed- 
eral power.  The  authority  of  Congress  extends  to  every  part 
of  interstate  commerce,  and  to  every  instrumentality  or  agency 
by  which  it  is  carried  on ;  and  the  full  control  by  Congress  of 
the  subjects  committed  to  its  regulation  is  not  to  be  denied  or 
thwarted  by  the  commingling  of  interstate  and  intrastate  opera- 
tions. This  is  not  to  say  that  the  nation  may  deal  with  the  in- 
ternal concerns  of  the  state,  as  such,  but  that  the  execution  by 
Congress  of  its  constitutional  power  to  regulate  interstate  com- 
merce is  not  limited  by  the  fact  that  intrastate  transactions  may 
have  become  so  interwoven  therewith  that  the  effective  govern- 
ment of  the  former  incidentally  controls  the  latter.  This  conclu- 
sion necessarily  results  from  the  supremacy  of  the  national  power 
within  its  appointed  sphere.  "•'  *  *  The  grant  in  the  Constitution, 
of  its  own  force,  that  is,  without  action  by  Congress,  established  the 
essential  immunity  of  interstate  commercial  intercourse  from  the 
direct  control  of  the  states  with  respect  to  those  subjects  em- 
braced within  the  grant  which  are  of  such  a  nature  as  to  demand 
that,  if  regulated  at  all,  their  regulation  should  be  prescribed  by 
a  single  authority.  It  has  repeatedly  been  declared  by  this  court 
that  as  to  those  subjects  which  require  a  general  system  or  uni- 
formity of  regulation  the  power  of  Congress  is  exclusive." 

The  statement  of  this  rule  in  \\'estern  Union  Telegraph  Co. 


19  L.  Ed.  999;  Smith  v.  Alabama,  2Ci;  Reversing  same  style  case, 
124  U.  S.  465,  473.  31  L.  Ed.  50S,  94  Ark.  394,  127  S.  W.  713.  In 
8  Sup.  Ct.  564;  Baltimore  &  O.  McDermott  v.  Wisconsin,  228  U. 
R.  Co.  V.  Interstate  Com.  Com.,  S.  115,  128,  57  L.  Ed.  514,  33  Sup. 
221  U.  S.  612,  618,  619,  55  L.  Ed.  Ct.  431,  it  was  said,  that  Con- 
878,  31  Sup.  Ct.  621;  Southern  gress  has  ample  power  not  only 
Ry.  Co.  V.  United  States,  322  U.  "to  pass  laws  which  shall  regu- 
S.  20,  26,  27,  56  L.  Ed.  72,  32  Suo.  late  legitimate  commerce  among 
Ct.  2;  Mondou  v.  New  York,  N.  the  states  and  with  foreign  na- 
il. &  H.  R.  R.  Co.,  223  U.  S.  1,  47,  tions,  but  has  full  power  to  keep 
54,  55,  56  L.  Ed.  327,  32  Sup.  Ct.  the  channels  of  such  commerce 
169,  38  L.  R.  A.  (N.  S.),  44;  fiee  from  the  transportation  of 
Chicago,  R.  I.  &  P.  R.  Co.  illicit  or  harmful  articles,  to  make 
V.  Hardwick  Farmers'  Elevator  such  as  are  injurious  to  the  pub- 
Co.,  226  U.  S.  426,  57  L.  Ed.  284,  lie  health  outlaws  of  such  com- 
33  Sup.  Ct.  174;  St.  Louis,  T.  M.  merce  and  to  bar  them  from  the 
&  S.  R.  Co.  V.  Edwards,  227  U.  facilities  and  privileges  thereof." 
S.  265,  57  L.   Ed.  506,  33   Sup.   Ct. 


6  State  Regulation  [§  3. 

t'.  James  ^  shows  that  as  to  "those  matters  relating  to  commerce 
which  are  not  of  a  nature  to  be  affected  by  locahty,  but  which 
necessaril}-  ought  to  be  the  same  over  the  whole  country,"  fail- 
ure of  Congress  to  act  is  "a  declaration  that  in  those  respects 
commerce  should  be  free  and  unregulated  by  any  statutory  en- 
actment." 

Street  railways  engaged  in  interstate  commerce  can  not  be 
regulated  as  to  their  interstate  rates  by  state  authority.*^  In  the 
Shreveport  case '  rates  established  under  authority  of  the  laws 
of  the  state  of  Texas  were  maintained  by  the  carriers  on  intra- 
state trafific,  which  rates  unlawfully  discriminated  against  inter- 
state rate's  maintained  by  the  same  carriers.  Upon  complaint 
to  the  Interstate  Commerce  Commission,  it  was  found  from  the 
evidence  of  record  that  such  relationship  of  rates  resulted  in 
undue  preference  and  unjust  discrimination,  in  violation  of  sec- 
tion 3  of  the  Act  to  Regulate  Commerce.  The  carriers  defend- 
ant contended  that  the  unlawful  discrimination,  if  any,  resulted 
from  rates  made  under  authority  of  the  laws  of  Texas,  and 
that  such  rates  so  made  were  not  subject  to  the  jurisdiction  of 
the  Interstate  Commerce  Commission.  The  contention  of  the 
carriers  was  not  adopted,  the  Supreme  Court  holding  that  section 
3  prohibited  all  unjust  discrimination,  and  that  the  fact  that  the 
discrimination  arose  from  intrastate  rates  did  not  deprive  Con- 
gress of  the  power  to  remove  it,  and  that  "in  removing  the  in- 
jurious discriminations  against  interstate  traffic  *  *  *  Con- 
gress is  not  bound  to  reduce"'  interstate  rates  "'below  what  it 
may  deem  to  be  a  proper  standard,  fair  to  the  carrier  and  to  the 
public." 

'Western     Union     Tel.     Co.     v.  'Houston   E.   &  W.  T.   Ry.  Co. 

James,    162    U.    S.   650,   40   L.    Ed.  v.    United    States,   234   U.    S.    342, 

1105;    16    Sup.     Ct.    934,    and    see  58    L.    Ed.    134,    1341,    34    Sup.    Ct. 

Welton  f.  Missouri,  91  U.  S.  275,  S33.  affirming  Tex.  &  P.  Ry.  Co.  z: 

282,    23    L.    Ed.    347;    Hall    r.    De  U.   S..   205   Fed.   380,   and   sustain- 

Cuir,   95   U.    S.    5   Otto   485,   24    L.  ing    order    of    the    commission   in 

Ed.    547;    Mobile    County   v.    Kim-  Railroad  Com.  of  La.  t'.  St.  L.  S. 

ball,  102  U.  S.  691,  26  L.  Ed.  238;  W.    Ry.    Co.,  23   I.   C.   C.   31.      See 

Covington,  etc..  Bridge  Co.  z\  Ken-  also,    Corp.    Com.   of   Okla.    v.   A, 

tucky,    154   U.    S.    204.    38    L.    Ed.  T.   &   S.   F.   Ry.    Co..   31   I.   C.    C. 

962,   14   Sup.   Ct.   1087.  532;    Merchants    Exchange   of   St. 

"South   Covington   R}-,  z:   Cov-  Louis   v.    B.    &   O.    R.    Co..   34    L 

ington.    235   U.    S.    537,    59    L.    Ed.  C.    C.    341. 
;    35   Sup.   Ct.   158. 


4.] 


Affecting  Interstate  Commerce. 


§  4.  Power  of  the  States  Indirectly  to  Affect  Interstate 
Commerce. — That  Congress  alone  may  directly  regulate  or  bur- 
den interstate  commerce  does  not  mean  that  the  states  may  not  in 
the  absence  of  federal  action  and  under  the  police  power  of  the 
state  pass  regulations  which  may  indirectly  afifect  such  commerce. 
Where  diversity  of  treatment  is  possible,  until  Congress  acts 
there  is  room  for  state  regulation  which  may  have  an  indirect 
effect  on  interstate  commerce.  The  power  of  Congress  being 
supreme,  when  there  is  federal  action  state  regulations-  are 
thereby  superseded.'  As  to  all  external  concerns  Congress  alone 
may  act.  As  to  "internal  concerns  which  affect  the  states  gen- 
erally," ^  Congress  having  failed  to  act,  a  state  may  legislate  in 
"safeguarding  life  and  property  and  promoting  comfort  and  con- 
venience within  its  jurisdiction,"  although  such  legislation  may 
extend  incidentally  to  the  operation  of  the  carrier  in  the  conduct 
of  interstate  business."  ^ 

This  incidental  regulation  by  a  state,  as  well  as  all  legislation, 
must  not  be  violative  of  the  due  process  and  equal  protection 
clauses  of  the  Constitution  of  the  United  States.  How  this 
principle  has  been  applied  will  appear  from  the  illustrations  con- 
tained in  this  chapter. 


^  Gibbons  v.  Ogden,  9  Wheat. 
22  U.   S.   1,   6   L.   Ed.  23    (1824). 

"  Simpson  et  al.,  R.  R.,  etc., 
Com.  of  Minnesota  z\  Shepard. 
("Minnesota  Rate  Cases")  230  U. 
S.  352,  410,  57  L.  Ed.  1151,  33 
Sup.  Ct.  729,  citing  cases;  see  also 
Chicago,  R.  I.  &  P.  Ry.  Co.  v. 
Hardwick  Farmers'  Elevator  Co., 
226  U.  S.  426,  57  L.  Ed.  284:  33 
Sup.  Ct.  174,  reversing  Hardwick 
Farmers'  Elevator  Co.  v.  Chicago, 
R.  I.  &  P.  Ry.  Co.,  100  Minn. 
25  124  \.  W.  819.  When  Con- 
gress acts  prior  state  laws 
in  conflict  are  superseded.  North- 
ern Pac.  Ry.  Co.  v.  State  of 
Washington,  222  U.  S.  370.  56  L. 
Ed.  237,  32  Sup.  Ct.  160;  Barrett 
V.  City  of  New  York,  232  U.  S. 
14,  58  L.  Ed.  483,  34  Sup.  Ct.  203. 


The  question  is  well  discussed 
and  properly  decided  in  People 
V.  Erie  R.  Co.,  135  App.  Div.  767, 
119  X.  Y.  Supp.  893;  it  was  there 
held  that  the  fact  that  Congress 
had  legislated,  although  the  leg- 
islation was  suspended,  super- 
seded the  state  law;  the  case  was 
reversed  on  appeal,  although  it 
would  seem  that  the  lower  court 
correctly  stated  the  law;  People 
V.  Erie  R.  Co.,  198  N.  Y.  369,  91 
N.  E.  849.  For  an  elaborate  dis- 
cussion, if  not  a  correct  conclu- 
sion, see  So.  Ry.  Co.  v.  R.  R. 
Com.  of  Indiana,  179  Ind.  23,  100 
X.  E.  337.  This  case  was  re- 
vel sed  because  Congress  had 
acted.  So.  Ry.  Co.  7'.  Railroad 
Com.  of  Indiana,  236  U.  S.  439, 
59   L.   Ed.  — .  35    Sup.   Ct.  304. 


8  State  Regulation  [§  5. 

§  5.  Commerce    within    the    Exclusive    Control    of    the 

States. — We  have  seen  that  there  is  a  commerce  over  which 
Congress  has  exclusive  control.  There  is  also  a  commerce 
which,  in  the  absence  of  federal  regulation,  may  be  indirectly 
affected  by  state  legislation.  There  is  also  a  commerce  which  is 
wholly  intrastate,  the  regulation  of  which  does  not  affect  di- 
rectly or  indirectly  interstate  commerce.  This  commerce  the 
states  alone  may  regulate.  In  the  Railroad  Commission  cases, ^° 
at  p.  334,  the  Supreme  Court  of  the  United  States  said : 

"Every  person,  every  corporation,  everything  within  the  ter- 
ritorial limits  of  a  state  is,  while  there,  subject  to  the  constitu- 
tional authority  of  the  state  government.  Clearly  under  this 
rule  Mississippi  may  govern  this  corporation,  as  it  does  all  do- 
mestic corporations,  in  respect  to  every  act  and  everything  within 
the  state  which  is  the  lawful  subject  of  state  government.  It 
may,  beyond  all  question,  by  the  settled  rule  of  decision  in  this 
court,  regulate  freights  and  fares  for  business  done  exclusively 
within  the  state,  and  it  would  seem  to  be  a  matter  of  domestic 
concern  to  prevent  the  company  from  discriminating  against 
persons  and  places  in  Alississippi.  So  it  may  make  all  needful 
regulations  of  a  police  character  for  the  government  of  the  com- 
pany while  operating  its  road  in  that  jurisdiction.  In  this  way 
it  may  certainly  require  the  company  to  fence  so  much  of  its 
road  as  .lies  within  the  state ;    to  stop  its  trains  at  railroad  cross- 

"  Stone    V.     Farmers    Loan     &  Ct.    140,    where    he    said:      "The 

Trust  Co.,  116  U.  S.  307,  334.  29  power  of  the  state  over  the  gen- 

L.    Ed.    636,    6    Sup.    Ct.    191,    334,  eral     subject     of     commerce     has 

338.     This  case  was   quoted  with  been    divided    into    three    classes: 

approval   in    the    Minnesota    Rate  First,   those   in  which   the  power 

Cases,    page    415,    for    which    see  of  the  state  is  exclusive;  Second, 

note  9,  supra.     For  a  summary  of  those    in    which    the    states    may 

state    legislation,     see     Interstate  act   in   the  absence  of  legislation 

Com.  Com.  v.  Cincinnati,  N.  O.  &  by     Congress;     Third,     those     in 

T.  P.  Ry.  Co.,  167  U.  S.  479,  495,  which   the  action   of  Congress  is 

42    L.    Ed.    243,    17    Sup.    Ct.    896,  exclusive  and  the  state  cannot  act 

also  cited  at  page  414  of  the  opin-  at    all."      Covington,    etc..    Bridge 

ion  in  the  Minnesota  Rate  Cases.  Co.   v.    Kentucky,    154   U.    S.   204, 

The  classification  of  power  made  209,    3S    L.    Ed.    962.    14    Sup.    Ct. 

herein   in    sections   3,   4   and   5   is  1087;    Western    Union    Telegraph 

made    by    Mr.    Justice    McKenna  Co.  v.  James.  162  U.  S.   650.  655, 

in   Southern   Ry.  v.   Reid,   222   U.  40  L.  Ed.  ilOo,  16  Sup.  Ct.  934. 
S.  424,  435,  56  L.  Ed.  257,  32  Sup. 


§  6.]  Affecting  Interstate  Commerce.  9 

ings ;  to  slacken  speed  while  running  in  a  crowded  thorough- 
fare ;  to  post  its  tariffs  and  time-tables  at  proper  places,  and 
other  things  of  a  kindred  character  affecting  the  comfort,  the 
convenience,  or  the  safety  of  those  who  are  entitled  to  look  to 
the  state  for  protection  against  the  wrongful  or  negligent  con- 
duct of  others." 

In  the  same  case,  at  p.  331,  the  court  showed  that  this  exclu- 
sive jurisdiction  to  act  does  not  mean  that  the  extent  of  the  reg- 
ulation is  itself  unlimited.  The  court  said:  "From  what  has 
thus  been  said,  it  is  not  to  be  inferred  that  this  power  of  limita- 
tion or  regulation  is  itself  without  limit.  This  power  to  regulate 
is  not  a  power  to  destroy,  and  limitation  is  not  the  equivalent  of 
confiscation.  Under  pretence  of  regulating  fares  and  freights, 
the  state  can  not  require  a  railroad  corporation  to  carry  persons 
or  property  without  reward ;  neither  can  it  do  that  which  in 
law  amounts  to  a  taking  of  private  property  for  public  use  with- 
out just  compensation  or  without  due  process  of  law." 

States  may  regulate  the  commerce  within  their  respective  ju- 
risdictions by  legislating  directly,  or  they  may,  as  has  been  done 
in  nearly  all  of  the  states,  delegate  to  a  board  or  commission  cer- 
tain powers  to  prescribe  rules  and  regulations,  to  fix  rates  and 
to  exercise  a  general  supervision  over  the  corporations  or  per- 
sons within  the  regulative  jurisdiction.  The  legislative  acts  cre- 
ating commissions  and  prescribing  the  powers  and  duties  thereof 
must  of  necessity  speak  in  more  or  less  general  terms,  for  as 
said  by  the  Supreme  Court  of  Florida  :i^  "The  difficulty  of 
making  a  specific  enumeration  of  all  such  powers  as  the  Legisla- 
ture may  intend  to  confer  upon  Railroad  Commissioners  for  the 
regulation  of  common  carriers  in  the  interest  of  the  public  wel- 
fare renders  it  necessary  to  confer  some  power  in  general  terms; 
and  general  powers  in  general  terms ;  and  general  powers  given 
are  intended  to  confer  other  powers  than  those  specially  enu- 
merated." 

§  6.  All  Commerce  Subject  to  Regulation. — The  divisions 
showing  where  the  power  to  regulate  commerce  rests  in  the  dif- 
ferent classes  named  in  the  three  preceding  sections,  as  said  by 
the  Supreme  Court,  "express  but  the  extreme  boundaries  of  the 

"  State  V.  Atlantic  C.  L.  R.  State  v.  Atlantic  C.  L.  R.  Co., 
Co.,     61     Fla.     799,     54     So.     900;       50    Fla.    617.    47    So.    969. 


10  State  Regulation  [§  6. 

subject."  ^-  ]\Iore  definite  principles  must  be  applied  to  partic- 
ular cases.  But  in  all  cases  the  power  to  regulate  rests  some- 
where. 

It  must  of  necessity  be  burdensome  to  interstate  carriers  to 
be  subject  to  regulation  by  two  governments  acting  independ- 
ently of  each  other,  and  it  is  frequently  a  difficult  question  to 
determine  which  has  the  power  to  require  a  particular  act  or  to 
make  a  particular  rule.  That  Congress  may  extend  its  power 
is  clearly  indicated  in  the  ^linnesota  Rate  cases  and  the  Shreve- 
port  case,  cited  supra,  and  that  the  extent  of  the  power  of  Con- 
gress under  the  Constitution  may  include  a  scope  much  wider 
than  has  been  exercised  under  the  Act  to  Regulate  Commerce 
and  acts  supplemental  thereto  and  amendatory  thereof,  is  shown 
by  the  decisions  of  the  Supreme  Court  under  the  Employers'  Lia- 
bility Acts. 13 

Some  of  the  delicate  and  difficult  questions  wdiich  arise  from 
the  dual  regulation  of  carriers,  appear  from  the  result  of  the 
decision  of  the  Supreme  Court  in  the  [Minnesota  Rate  cases.  Sec. 
3  supra.  Duluth,  Minnesota,  and  Superior,  \\'isconsin,  are  about 
3  miles  apart,  and  each  is  located  on  Lake  Superior.  Rates 
from  and  to  these  ports  must  of  necessity  be  the  same.  From 
Duluth  to  Minnesota  points  over  one  line  is  an  intrastate  move- 
ment ;  over  other  lines  such  movement  is  interstate.  All  ship- 
ments from  Superior  to  Minnesota  points  move  interstate.  That 
the  paramount  authority  of  Congress  may  be  exercised,  the  reg- 
ulation of  rates  from  these  cities,  whether  interstate  or  intra- 
state, must  be  by  national  authority.  Under  the  decisions  in  the 
[Minnesota  Rate  cases,  the  [Minnesota  rate  schedule  to  Duluth 
intrastate  became  effective.  Higher  rates  having  been  paid  pend- 
ing the  litigation,  shippers  intrastate  received  a  refund  of  part 
of  the  rate  paid  by  them,  and  in  complaints  before  the  Inter- 
state Commerce  Commission  it  was  contended  that  the  refunds 
paid  on  intrastate  shipments  should  be  adopted  as  the  measure  of 
refunds  on  interstate  shipments.  The  Interstate  Commerce  Com- 
mission applied  the  paramount  authority  of  the  national  govern- 

"  Southern  Ry.     Co.     v.     Reid,  Employers'    Liability    Cases,    223 

sitt^ra.  U.    S.    1,    56    L.    Ed.    327.    32    Sup. 

"Sec.     332,  post.       Mondou     v.  Ct.    169,   38    L.    R.    A.    (X.    S.)    44. 

N    Y..  N.   H.  H.   R.   Co..   Second 


§  7.]  Affecting  Interstate  Commerce.  11 

ment  regarding  the  state,  prescribed  rates  as  a  fact  to  be  consid- 
ered, but  determined  the  question  for  itself.^'* 

§  7.  Eminent  Domain. — The  right  of  eminent  domain  is  an 
incident  to  sovereignty.  The  right  has  been  defined  as  the  power 
to  compel  an  owner  to  sell  and  convey  property  when  the  public 
necessities  require. ^^  The  right  must,  of  course,  be  exercised 
within  constitutional  limits.  The  right  may  be  exercised  for  a 
public  purpose  and  upon  payment  of  a  proper  compensation,  after 
due  process  of  law,  against  the  right  of  way  of  an  interstate  car- 
rier. It  has  been  held  by  the  Supreme  Court  of  the  United 
States  ^*^  that  the  power  of  eminent  domain  was  not  surrendered 
by  the  states  to  the  United  States  nor  affected  by  the  federal  Con- 
stitution,  except  that  it  must  be  exercised  in  accordance  with  due 
process  of  law  upon  payment  of  compensation.  The  power  of 
eminent  domain  extends  to  tangibles  and  intangibles,  including 
choses  in  action,  contracts  and  charters.  An  appropriation  of  a 
contract  luider  the  right  of  eminent  domain,  with  compensation, 
neither  challenges  its  validity  nor  impairs  the  obligation  there- 
under. It  is  a  taking  of  property,  not  an  impairment  of  an  obli- 
gation. Every  contract,  whether  between  the  state  and  an  indi- 
vidual or  between  individuals  only,  is  subject  to  the  law  of  eminent 
domain,  for  there  enters  into  every  engagement  the  unwritten  con- 
dition that  it  is  subject  to  appropriation  for  public  use. 

Congress  has  made  all  railroads  governmental  post  roads  ^"  and 
authorized  telegraph  companies,  under  certain  conditions,  to  con- 


"  Freight     rates     from     i\Iinne-  ^^  Cincinnati     z\      Louisville      & 

sota     points,     32     I.     C.     C.     3G1.  X.    R.    Co.,    223    U.    S.    390,    56    L. 

Rates    on    Beer    and    Other    Malt  Ed.    481,    32    Sup.    Ct.    267,    and 

Products,  31   I.   C.  C.  544.     Com-  also     see,     Western     Union     Tel. 

pare   Corp.    Com.   of   Okia.   r.   A.  Co.    ■::•.    Pennsylvania    R.    R.    Co. 

T.  &  S.  F.  Ry.  Co..  31  I.  C.  C.  532;  et    al.,    195    U.    S.    540,    49    L.    Ed. 

Trier   v.    C.    St.    P.    M.    &   S.    Ry.  312,  25   Sup.  Ct.  133.  1  Ann.  Cas. 

Co.,    30    I.    C.    C.    352.  517. 

"United    States    f.    Jones,    109  ''Acts  June  15,  1866,  c.   124,  14 

U.  §.  513,  27  L.  Ed.   1015,   3   Sup.  Stat.   66    (Rev.   Stat.   sec.   5258   U. 

Ct.     346;      Cincinnati     v.     Louis-  S.  Comp.  Stat.  1901,  p.  3565),  and 

ville  &  N.  R.   Co.,  223  U.  S.  390,  Acts  June  8    1872,  c.  335,  17  Stat. 

56    L.    Ed.    481,    32    Sup.    Ct.    267;  308,   309    (Rev.   Stat.   sec.   3964,   U. 

Fletcher    v.    Peck,    6    Cranch,    10  S.    Comp.    St.    1901,    p.    2707);    5 

U     S.    87,    3    L.    Ed.    162.  Fed.   Stat.   Ann.   900. 


12  State  Regulation  [§  8. 

struct,  maintain  and  operate  lines  thereover.^®  These  acts  alone 
gave  no  right  to  telegraph  companies  to  acquire  the  use  of  the 
railroads'  right  of  way/'-^i  but  a  state  statute  giving  such  right 
against  the  right  of  way  of  an  interstate  carrier  is  not  invalid  as 
an  attempted  regulation  of  interstate  commerce;  it  being  the 
opinion  of  the  Circuit  Judges  of  the  Sixth  Circuit  that  "it  was 
the  intention  of  Congress  to  leave  to  the  states  the  question  of 
granting  or  withholding  the  right  of  eminent  domain."  -*^  The 
right  arising  under  a  state  law  comes  within  that  division  of  the 
state's  powers  which  may  be  exercised  in  the  absence  of  federal 
regulation. 

That  the  United  States  may  exercise  the  power  to  condemn 
land  "whenever  it  is  necessary  or  appropriate  *  *  *  jji  t^g 
execution  of  any  of  the  powers  granted  *  *  *  by  the  Con- 
stitution," -1  can  not  be  doubted.  Nor  can  the  state  "by  action 
or  inaction,  prevent,  unreasonably  burden,  discriminate  against 
or  directly  regulate  interstate  commerce  or  the  right  to  carry  it 
on."  --  This  cjuotation,  read  in  the  light  of  the  case  in  which 
the  language  was  used,  is  a  declaration  that  a  state,  by  refusing 
the  right  of  eminent  domain,  can  not  prohibit  interstate  com- 
merce. 

§  8.  States  May  Establish  Means  for  Interstate  Trans- 
portation.— The  states  may  grant  corporate  franchises,  and  the 
corporations  so  created,  being  authorized  so  to  do  by  tjie  law 

"Acts   July   24,   1866,   c.   230,   14  ''United    States   v.    Gettysburg 

Stat.    221    (Rev.    Stat.    sees.    5263-  Elec.  Ry.,  160  U.  S.  668,  679,  40  L. 

5269    (U.    S.    Comp.    St.    1901,    pp.  Ed.  576,  16  Sup.   Ct.  427;  Kohl  V. 

3579,   3580)  ).    Cincinnati  v.   Louis-  United    States,    91    U.    S.    367,    23 

ville   &  N.   R.   Co.,  223   U.   S.,  56  L.    Ed.    449;    Cherokee    Nation   v. 

L.  Ed.  481,  52  Sup.  Ct.  267,  West-  Kansas    Railway,    135    U.    S.    641, 

ern   Union   Tel.    Co.   v.    Penn.    R.  656,    34    L.    Ed.    295,    10    Sup.    Ct. 

R.   Co.,   195   U.   S.   540,   49   L.   Ed.  965;    Chappell    v.    United    States, 

312,   25   Sup.   Ct.   133,   1  Ann.   Cas.  160   U.    S.    499,   40    L.    Ed.    510,    16 

517.  Sup.    Ct.    397. 

"  See    also    Williams    v.    Talla-  ='  Oklahoma,     West.      Attorney 

dega,    226    U.    S.    404,    57    L.    Ed.  General  v.    Kansas    Natural    Gas 

275,  33  Sup.  Ct.  116,  holding  that  Co..  221  U.  S.  229,  262,  55  L.  Ed. 

the    federal    statute    was    merely  716,    31     Sup.    Ct.    564;    affirming 

permissive    and    citing   cases.  Haskell    v.    Kansas    Natural    Gas 

="  Louisville     &     N.     R.     Co.     v.  Co.,  172  Fed.  545. 
Western  Union  Tel.  Co.,  207  Fed. 
1.   124   C.    C.   A.   573. 


§  8.]  Affecting  Interstate  Commerce.  13 

of  their  creation,  may  engage  in  interstate  transportation.  It 
is  also  true  that  a  state  may,  as  a  general  rule,  exclude  a  corpora- 
tion of  another  state  from  transacting  ordinary  business  within 
its  limits,  or  permit  the  engaging  in  such  business  on  terms.  The 
state  creating  a  corporation  does  not  confer  thereon  the  right 
to  engage  in  interstate  commerce,  nor  can  a  state  "exclude  from 
its  limits  a  corporation  engaged  in  such  commerce."  -^  ,  In  Okla- 
homa V.  Kansas  Natural  Gas  Co.,-^  the  Supreme  Court  of  the 
United  States  held  invalid  a  law  of  Oklahoma  which  prohibited 
a  corporation  of  another  state  from  engaging  in  the  transporta- 
tion of  oil  from  Oklahoma  in  interstate  commerce.  The  law  was 
sought  to  be  sustained  upon  the  theory  that  it  was  made  to  "con- 
serve" the  natural  resources  of  the  state.  In  denying  the  va- 
lidity of  this  contention  the  court  argued  that,  if  Oklahoma  could 
exercise  such  power,  other  states  might,  and,  said  the  court,  "a 
complete  annihilation  of  interstate  commerce  might  result."  Mr. 
Justice  McKenna,  at  p.  261  of  the  opinion,  quotes  with  approval 
these  propositions : 

"No  state  by  the  exercise  of,  or  by  the  refusal  to  exercise,  any 
or  all  of  its  powers,  may  prevent  or  unreasonably  burden  inter- 
state commerce  within  its  borders  in  any  sound  article  thereof. 

"No  state  by  the  exercise  of,  or  by  the  refusal  to  exercise,  any 
or  all  of  its  powers,  may  substantially  discriminate  against  or 
directly  regulate  interstate  commerce  or  the  right  to  carry  it  on." 

A  corollary  to  this  statement  of  the  law  is,  "that  a  corporation 
of  one  state  authorized  by  its  charter  to  engage  in  lawful  com- 
merce among  the  states,  may  not  be  prevented  by  another  state 
from  coming  into  its  limits  for  all  the  legitimate  purposes  of 
such  commerce."  -"*  This  is  true  because  the  right  to  carry  on 
interstate  commerce  is  not  a  privilege  granted  by  a  state  but  is 
one  of  the  privileges  of  every  citizen  of  the  United  States,  "and 
the  accession  of  mere  corporate  facilities  *  *  *  can  not 
have  the  effect  of  depriving  them  of  such  right."  -^     A  fortiori 

'^  See   note   22   supra,   221    U.    S.  33  Sup.  Ct.  41.    See  also.  Mercan- 

at  p.  260  and  cases  cited  through-  tile   Trust   Co.  v.   Tex.    &   P.   Ry. 

out  opinion.  Co.,    216    Fed.    220 — holding    that 

^'  Western    Union    Tel.    Co.    z'.  a   railroad   company  incorporated 

Kansas,  216  U.  S.  1,  27,  54  L.  Ed.  under  an  act  of  Congress  can  not 

355,    30   Sup.    Ct.   190.  be   excluded  by  a  state  from  do- 

"  Buck  Stove  Co.  v.  Vickers,  ing  business  within  its  borders. 
226  U.   S.  205,  215,  57   L.   Ed.  189, 


14  State  Regulatiox  [§  9. 

Congress  might  create  or  license  a  corporation  to  engage  in 
commerce  "among  the  states"  and  no  state  could  prevent  such 
corporation  "from  coming  into  its  limits  for  all  the  legitimate 
purposes  of  such  commerce." 

Nonincorporation  does  not  prevent  the  regulation  of  a  com- 
mon carrier.-*^ 

§  9.  Regulation  of  Facilities — Depots. — The  Acts  of  Con- 
gress regulating  interstate  commerce  apply  to  "common  *  *  * 
carriers  engaged  in  the  transportation  of  passengers  or  property 

*  *  '■■'  by  railroad."  -'  "Railroad"'  includes  "all  switches, 
spurs,  tracks  and  terminal  facilities  of  every  kind  used  or  nec- 
essary  in   the   transportation   of   *     *     *     persons   or  property 

*  *  ■■■  and  also  all  freight  depots."  -*  The  act  does  not  apply 
to  "transportation  of  passengers  or  property  *  *  *  wholly 
within  one  state."  -'' 

A  station  for  the  accommodation  of  passengers  and  for  the 
receipt  and  delivery  of  freight  is  necessary  both  for  interstate 
and  intrastate  transportation,  and  generally  such  stations  ser\-e 
the  needs  of  each  class  of  transportation.  It  has  been  held  that 
the  provision  limiting  the  scope  of  the  Acts  of  Congress  regu- 
lating interstate  transportation  applies  to  all  portions  of  the 
act;^**  although  the  limiting  proviso  does  not  justify  a  state  in 
discriminating  against  interstate  commerce. ^^ 

From  this  it  follows  that  there  is  a  field  in  which  the  states 
may  act  in  regulating  carriers,  although  such  carriers  may  be 
engaged  in  both  interstate  and  intrastate  transportation.  The 
boundayies  of  the  respective  powers  of  the  state  and  federal 
governments  are  not  distinctly  marked.  It  has  been  said  that 
the  Act  of  Congress,  "excludes  the  right  of  a  state  to  regulate 

*  *  *  the  obligation  of  furnishing  the  means  of  interstate 
transportation."  ^- 

'"  Piatt  z'.  LeCocq,  150  Fed.  391,  '"  Simpson,    et    al,    R.    R.    Com. 

reversed  on   another  point,   Piatt  of  Minnesota  f.   Shepard.  230  U. 

v.  LoCocq,  158  Fed.  723.  85  C.  C.  S.    352,    432,    433,    57    L.    Ed.    1511, 

A.   621,   15   L.   R.   A.    (N.   S.).   558;  33    Sup.    Ct.    729. 

United     States     Express     Co.     z\  "'  Houston   &  Texas  Railway  v. 

State,   164  Ind.  196,  73   N.   E.  101.  U.    S.,    234    U.    S.    342,    58    L.    Ed. 

='  Sec.  1,  Act  to  Regulate  Com-  1341.    34    Sup.    Ct.    833. 

nierce.  post,  sec.   335.  ^"  Demurrage    cases,    Chicago  R. 

"  Id.,    sec.    337,    post.  I.    &    P.    Ry.    Co.    r.    Hardwick 

"  Id.,   sec.   336,  post.  Farmers   Elevator  Co.,  226  U.  S. 


§  9.]  Affecting  Interstate  Commerce.  15 

In  the  Larabee  Mills  case  ^^  it  was  held  that  the  mere  grant 
by  Congress  of  power  to  the  Interstate  Commerce  Commission 
does  not,  in  the  absence  of  action  by  the  Commission,  change 
the  rule  that  the  states  "may  regulate  many  matters  which  indi- 
rectly affect  interstate  commerce."  There  is,  as  said  by  Mr. 
Justice  Hughes  in  the  ^Minnesota  Rate  Cases, ^"^  an  "interblend- 
ing  of  operations  in  the  conduct  of  interstate  and  local  business 
by  interstate  carriers.  *  *  *  The  same  right-of-way,  termi- 
nals,   rails,    bridges    are    provided    for    both    classes    of    traffic ; 

*  *  *  the  proportion  of  each  sort  of  business  varies  from 
year  to  year  and,  indeed,  from  day  to  day ;  *  *  "^  no  divi- 
sion of  the  plant,  no  apportionment  of  it  between  interstate  and 
local    traffic,    can    be    made    today    which    will    hold    tomorrow ; 

*  *  *  terminals,  facilities  and  connections  in  one  state  aid 
the  carrier's  entire  business  and  are  an  element  of  value  with  re- 
spect to  the  whole  property  and  the  business  in  other  states." 
But  notwithstanding  this  is  true,  Congress  has  not  occupied  the 
whole  field,  and  the  states  may  act  so  as  indirectly  to  affect  in- 
terstate transportation  where,  "congressional  action  leaves  room 
without  a  conflict  for  the  operation  of  the  state  law  in  the  same 
field."  35 

A  statute  in  ^Mississippi  required  railroads  to  "establish  and 
maintain  such  depots  as  shall  be  reasonably  necessary  for  the 
public  convenience,"  and  to  "stop  such  of  the  passenger  and 
freight  trains  at  any  depot  as  the  business  and  public  conveni- 
ence shall  require."  The  Railroad  Commission  of  Alississippi 
having  ordered  a  carrier  to  stop  an  interstate  train  at  a  particu- 
lar depot.  Air.  Justice  Peckham  delivering  the  opinion  of  the 
court,  after  citing  cases,  said :  ^^  "Upon  the  principle  decided 
in  these  cases,  a  state  railroad  commission  has  the  right,  under 
a  state  statute,  so   far  as  railroads  are  concerned,  to  compel  a 

426,    57    L.    Ed.    284,    .33    Sup.    Ct.  ''  Note  30  S2ipra. 

174;   St.  Louis  I.   M.   &  S.  Ry.  v.  ''Louisville     &    N.     R.     Co.    v. 

Edwards,  227  U.    S.  265,  269,  270,  Hutjhes,   201    Fed.    727,   742. 

57   Lv  Ed.  506,  33   Sup.   Ct.  26.  ^  Mississippi     R.     R.     Com.     v. 

''Missouri  Pac.  Ry.  Co.  v.  Lar-  Illinois   C.   R.   Co.,  203  U.   S.   335, 

abee    Flour   Mills   Co.,   211   U.    S.  344,    51    L.    Ed.    209,    27    Sup.    Ct. 

612,    623,    53    L.    Ed.    352,   29    Sup.  Rep.    90,    affirming   Illinois    C.    R. 

Ct.    Rep.    214,    affirming    Larabee  Co.    v.    Mississippi    R.    R.    Com., 

Flour  Mills   Co.  v.   Missouri   Pac.  138   Fed.  327,  70  C.   C.  A.   617. 
Ry.,   74   Kan.   808,   88   Pac.   72. 


16 


State  Regulation 


:§  9. 


company  to  stop  its  train  under  the  circumstances  already  re- 
ferred to,  and  it  may  order  the  stoppage  of  such  trains  if  the 
company  does  not  otherwise  furnish  proper  and  adequate  ac- 
commodation to  a  particular  locality,  and  in  such  cases  the  or- 
der may  embrace  a  through  interstate  train  actually  running  and 
compel  it  to  stop  at  a  locality  named.  In  such  case,  in  the  ab- 
sence of  congressional  legislation  covering  the  subject,  there 
is  no  illegal  or  improper  interference  with  the  interstate  com- 
merce right."  The  order,  however,  was  held  invalid  as  unrea- 
sonable. 

A  carrier  may  not  be  compelled  by  mandamus  to  build  a  sta- 
tion at  a  particular  place  in  the  absence  of  a  specific  statutory 
duty  so  to  do,^'  but  when  the  statute  so  authorizes,  mandamus 
will  lie  to  compel  the  construction  of  a  depot. ^^  It  may  be  said 
that  the  proper  governmental  authority,  whether  legislative  or 
administrative,  the  latter  being  by  statute  authorized,  may  regu- 
late the  location  and  require  the  construction  of  depots  and  the 
maintenance  of  necessary  depot  facilities.  Such  regulation  must 
in  all  cases  be  reasonable  and  must  be  made  upon  proper  consid- 
eration of  the  rights  of  both  the  carriers  and  the  public.  Whether 
such  regulation  can  be  enforced  by  mandamus  or  by  suits  for  pen- 
alties depends  upon  the  terms  of  the  particular  regulating  statute. 
The   Interstate   Commerce   Commission  has   exercised  the   right 


"Northern  Pac.  R.  Co.  v. 
Washington  Territory,  142  U.  S. 
492,  35  L.  Ed.  1092,  12  Sup.  Ct. 
283,  but  see  the  vigorous  dissent 
of  Mr.  Justice  Brewer  concurred 
in  by  Justices  Field  and  Harlan. 
The  majority  opinion  is  sustained 
by  a  well-reasoned  argument 
quoted  from  People  v.  N.  Y.  L. 
E.  &  W.  R.,  104  X.  Y.  58.  9  X. 
E.  856,  although  there  is  author- 
ity supporting  the  dissenting 
view.  Concord  &  M.  R.  Co.  z'. 
Boston  &  M.  R.  Co.,  6S  X.  H. 
464,   41    Atl.   263. 

"^  People  r.  Delaware  &  H. 
Canal  Co..  32  X.  Y.  .\pp.  Div. 
120,   52   X.  Y.   Supp.   850,  affirmed 


in  165  X.  Y.  362,  59  X.  E.  138; 
Central  of  Georgia  R}^  Co.  v. 
State,  104  Ga.  831.  31  S.  E.  531; 
Railroad  Commissioners  of  South 
Carolina  v.  Columbia  &  G.  R.  Co., 
26  S.  C.  353,  2  S.  E.  127;  Northern 
Pac.  R.  Co.  T.  Territory  (Wash. 
T.),  13  Pac.  604:  McCoy  z:  Cin- 
cinnati I.  St.  L.  &  C.  R.  Co.,  13 
Fed.  3;  State  v.  Republican  Val. 
R.  Co.  (Neb.),  26  X.  W.  205  and 
24  N.  W.  329.  The  right  of  a 
commission  to  locate  a  station 
does  not  authorize  a  requirement 
that  separate  freight  and  passen- 
ger depots  be  maintained.  State 
V.  Yazoo  Valley  R.  Co.,  87  Miss. 
679.    40    So.    263. 


§  9. 


Affecting  Interstate  Commerce. 


17 


to  regulate  the  use  of  freight  terminals, ^^  and  such  regulation 
is  within  its  statutory  power.  It  would  seem  that  regulations  as 
to  the  construction,  location,  operation  and  maintenance  of  de- 
pots, being  regulations  which  can  best  be  made  by  a  local  tri- 
bunal, are  at  least  in  the  present  state  of  the  federal  law  and  in 
view  of  non-action  by  the  Interstate  Commerce  Commission, 
within  the  cognizance  of  state  laws  and  state  commissions.'"^ 
Such  regulation  does  not  burden  or  impede,  but  aids  and  fa- 
cilitates intercourse  and  traffic.^  ^ 

Under  these  principles,  a  railroad  may  be  compelled  to  install 
a  telephone  in  a  depot  to  facilitate  its  business  ^-  but  not  for  gen- 
eral  commercial   purposes.-*^ 

The  business  of  a  railroad  is  transportation,  and  it  can  not 
be  compelled  to  provide  scales  at  local  stations  for  the  conven- 
ience of  stock  shippers."''* 


™  Federal  Sugar  Refining  Co.  z'. 
Baltimore  &  O.  R.  Co.,  17  I.  C. 
C.  40,  47,  20  I.  C.  C.  200;  Cattle 
Raisers'  Asso.  z:  C.  B.  &  Q.  R. 
R.  Co.,  11  I.  C.  C.  277;  R.  R. 
Com.  of  Ky.  v.  L.  &  X.  R.  R. 
Co.,  192  U.  S.  568,  48  L.  Hd.  565. 
24   Sup.    Ct.   339. 

In  United  States  v.  B.  &  O.  R. 
Co.,  231  U.  S.  274,  58  L.  Ed.—,  34 
Sup.  Ct.  75,  the  order  of  the 
Commission  was  set  aside  but 
the    right    to    regulate    conceded. 

^^  Cases  illustrating  the  exer- 
cise of  the  power  by  state  au- 
thority are:  Atty.  Gen.  of  Mass. 
z:  Eastern  R.  Co.,  137  Mass.  45; 
Board  of  R.  R.  Com'rs  of  Kan- 
sas V.  Missouri  P.  R.  Co.,  71  Kan. 
193,  80  Pac.  53;  Corporation 
Commission  of  N.  C.  z>.  Seaboard 
A.  L.  Ry.,  161  N.  C.  270,  76  S.  E. 
554;  St.  Louis  I.  M.  &  S.  Ry.  Co. 
z:  State,  31  Okla.  509,  122  Pac. 
217;  Horton  v.  So.  Ry.  Co.,  173 
Ala.  231,  55  So.  531;  College 
Arms  Hotel  Co  z:  Atlantic  C. 
L.  R.  Co.,  61  Fla.  553,  54  So.  459; 
St.  Louis  S.  W.  Ry.  Co.  r.  State, 


97  Ark.  473,  134  S.  W.  970;  State 
z\  Ogden  Rapid  Transit  Co.,  38 
Utah  242,  112  Pac.  120;  Pecos  & 
X.  T.  Ry.  Co.  z'.  Railroad  Com.  of 
Texas.  56  Tex.  C.  A.  422,  120  S. 
W.  1055;  R.  R.  Com.  of  Tex.  v. 
Chicago.  R.  I.  &  G.  Ry.  Co.,  114 
S.  W.  192,  reversed  102  Tex.  393, 
117  S.  W.  794;  Louisiana  R.  &  X. 
Co.  z:  R.  R.  Com.  of  La.,  12,1  La. 
849,    49    So.    884. 

"  Morris-Scarboro-Moffitt  Co. 
z'.  Southern  Express  Co.,  146  X. 
C.  16;,  59  S.  E.  667;  Pittsburg 
C.  C.  &  St.  L.  R.  Co.  V.  Hunt, 
171    Ind.   189,   86    X.    E.   328. 

'' Atchison  T.  &  S.  F.  Ry.  Co.  v. 
State,   23    Okla.   210,    100   Pac.   11. 

«  Atchison  T.  &  S.  F.  Ry.  Co.  v. 
State,  23  Okla.  231,  100  Pac.  16. 
See  as  to  right  to  require  rates 
to  be  posted,  Johnson  v.  Sea- 
board A.  L.  Ry.,  78  S.  C.  361,  52 
S.    E.    644. 

"  Xew  Mex.  Wool  Growers' 
Asso.  V.  A.  T.  &  S.  F.  R.  Co.. 
X.  M.,  145  Pac.  1077;  G.  X.  R. 
Co.  V.  Minnesota,  238  U.  S.  340, 
59    L.    Ed.   — ,    35    Sup.    Ct.    753. 


18  State  Regulatiox  [§  10. 

§  10.  Regulation  of  Facilities — Terminal  Roads. — Short 
lines  of  railroad  engaged  as  common  carriers  in  the  business  of 
transporting  freight  between  the  termini  of  other  common  .car- 
riers and  industries  not  directly  on  the  lines  of  the  principal 
carriers  are  designated  as  terminal  railroads.  Generally  this 
terminal  railroad  is  located  in  only  one  state  and  is  a  state  cor- 
poration. It  delivers  freight  which  may  be  brought  to  it  by 
other  carriers  or  delivers  freight  from  industries  to  other  car- 
riers, such  freight  being  destined  from  or  to  points  both  within 
and  without  the  state  in  which  the  terminal  railroad  is  located. 

In  a  federal  case  decided  in  1887  it  was  held  that  a  "switch- 
ing" service  was  local  and  might  be  regulated  by  a  state  com- 
mission,-*^ but  it  can  not  now  be  doubted  that,  where  a  delivery 
service  by  a  terminal  road  relates  to  freight  which  moves  in  in- 
terstate commerce,  as  to  such  transportation  the  carrier  is  not 
legally  subject  to  any  regulation  by  state  authority.  The  In- 
terstate Commerce  Commission  has  regulated  rates  of  terminal 
charges,  holding  that.  "x-\  state  statute  fixing  terminal  charges 
is  not  controlling  with  respect  to  interstate  transportation."  ^^ 
Discrimination  by  a  terminal  company  was  prohibited.^" 
Through  routes  and  joint  rates  with  terminal  roads  have  been 
ordered.^ ^  That  such  roads,  as  to  interstate  transportation  of 
which  the  terminal  haul  is  a  part,  are  within  the  Act  to  Regu- 
late Commerce  has  been  recognized  and  established  by  the  Su- 
preme Court  of  the  United  States.-*^  In  the  Southern  Pacific 
Terminal  case,°*'  Mr.  Justice  ^IcKenna  cjuotes  approvingly  lan- 
guage of  the  Commission  aptly  expressing  the  rule.     He  there 

*' Chicago  M.  &  St.   P.  Ry.  Co.  Co.   of  X.  J.,  18  I.   C.   C.  25,  and 

V.   Becker,   32   Fed.   849;    the  rate  cases    cited,   at   p.   33. 
prescribed  by  the  State  Commission  "  Int.  Com.  Com.  v.  Chicago  B. 

was    enjoined    as    being   too    low,  &    Q.    R.    Co.,    186    U.    S,    320,    46 

same   case   35    Fed.    883.  L.   Ed.   1182.  22   Sup.   Ct.  824;   So. 

^'Wilson   Produce   Co.   v.   Penna.  Ry.   Co.  z:   St.   L.   Hay  &  G.   Co., 

R.    Co.,    14    I.    C.    C.    170.  214   U.    S.   297,   53    L.    Ed.   1004,   29 

"  Eichenberg    z\    So.    Pac.    Co.,  Sup.   Ct.  678:    Int.   Com.  Com.  v. 

14   I.    C.   C.   250;   order   approved,  Stickney,  215  U.  8.  98,  54  L.  Ed. 

So.     Pac.    Terminal    Co.    v.     Int.  112,  30  Sup.  Ct.  66;  United  States 

Com.   Com.,  219  U.  S.  498,  55  L-  :'.  Union   Stock  Yards  &  Transit 

Ed.    310,    31    Sup.    Ct.   279.  Co.,  226  U.   S.  286,  57  L.   Ed.  220, 

''Mfgrs.    Ry.    Co.    :■.    St.    Louis  33    Sup.   Ct.  S3. 
I.   M.   &   S.   Ry.   Co.,   21    I.   C.    C.  ^^  Note   47,   suf^ra. 

304;     and    see,    Peale   f.    Cent.    R. 


§  11.]  Affecting  Interstate  Commerce.  19 

quoted :  "The  Terminal  Company  is  part  and  parcel  of  the 
system  engaged  in  the  transportation  of  commerce,  and  to  the  ex- 
tent that  such  commerce  is  interstate  the  Commission  has  juris- 
diction to  supervise  and  control  it  within  statutory  limits.  To 
hold  otherwise  would  in  effect  permit  carriers  generally,  through 
the  organization  of  separate  corporations,  to  exempt  all  of  their 
terminals  from  our  regulating  authority." 

Terminal  roads,  therefore,  as  to  all  questions  of  rates  and 
regulations,  are  subject  to  the  jurisdiction  of  the  state  or  the  fed- 
eral government  in  the  same  way  as  other  common  carriers. 
When  the  regulation  relates  to  intrastate  transportation  and 
does  not  affect  interstate  commerce,  a  state  commission  may 
act,  otherwise  the  Interstate  Commerce  Commission  alone  has 
power  to  prescribe  rates,  rules  and  regulations. 

§  11.  State  Laws  Forbidding  the  Consolidation  of  Com- 
peting Carriers. — A  constitutional  provision  of  the  state  of 
Kentucky  prohibiting  the  consolidation  of  stocks,  franchises  or 
property,  as  well  as  the  purchase  and  lease,  of  parallel  or  com- 
peting lines  of  railroad  does  not  so  interfere  with  interstate 
commerce  as  to  be  invalid.  The  "instruments  of  commerce" 
may  be  regulated  by  the  states.  In  sustaining  the  foregoing  law 
of  Kentucky,  ]\Ir.  Justice  Brown,  announcing  the  opinion  of 
the  Supreme  Court,  said :  -""^ 

"The  power  to  construct  them  (railroads)  involves  necessarily 
the  power  to  impose  such  regulations  upon  their  operation  as  a 
sound  regard  for  the  interests  of  the  public  may  seem  to  render 
desirable.  In  the  division  of  authority  with  respect  to  interstate 
railways  Congress  reserved  to  itself  the  superior  right  to  con- 
trol their  commerce  and  forbid  interference  therev/ith ;  while  to 
the  states  remains  the  power  to  create  and  to  regulate  the  in- 
strtmients  of  such  commerce,  so  far  as  necessary  to  the  con- 
servation of  the  public  interests. 

"If  it  be  assumed  that  the  states  have  no  right  to  forbid  the 

"'Louisville  &  X.  R.  Co.  r.  ern  R.  Co..  161  U.  S.  646,  40  L. 
Kentucky.  161  U.  S.  677,  40  L.  Ed.  838,  16  Sup.  Ct.  705.  Simp- 
Ed.  849,  16  Sup.  Ct.  714.  Ex-  son,  et  al..  R.  R.  Com.  of  Min- 
piained,  Northern  Securities  Co.  nesota  z:  Shepard,  230  U.  S.  352. 
V.  United  States,  193  U.  S.  197,  432.  433.  57  L.  Ed.  1511,  33  Sup. 
348  48  L.  Ed.  679,  705,  24  Sup.  Ct.  729. 
Ct.  436.     Pearsall  v.  Great  North- 


20  State  Regulatiox  [§  12. 

consolidation  of  competing  lines,  because  the  Avhole  subject  is 
within  the  control  of  Congress,  it  would  necessarily  follow  that 
Congress  would  have  the  power  to  authorize  such  consolidation 
in  defiance  of  state  legislation — a  proposition  which  needs  only 
to  be  stated  to  demonstrate  its  imsoundness." 

§  12.  Regulation  of  Facilities — Spur  Tracks.— -Where  an 
order  of  a  state  tribunal  affects  only  intrastate  commerce,  the 
question  of  whether  or  not  it  was  arbitrary  and  unreasonable  is 
for  the  state  courts,  and  it  is  proper  to  require  a  carrier  to  fur- 
nish facilities  for  making  the  necessary  connections  for  passen- 
ger travel;  even  if,  in  doing  so,  that  service  must  be  furnished 
at  a  loss.^- 

A  state  statute  authorizing  a  state  commission  to  require  a 
railroad  to  permit  the  erection  of  an  elevator  upon  its  road  bed 
was  held  hy  the  Supreme  Court  of  the  United  States  to  be  in- 
valid ;  ^^  and  the  same  court  held  void  a  law  compelling  all  rail- 
roads, upon  application  and  when  a  specified  elevatoi"  capacity 
exists,  to  "erect,  equip  and  maintain  a  side  track  or  switch  of 
suitable  length  to  approach  as  near  as  four  feet  of  the  outer 
edge  of  their  right  of  way  when  necessary,  and  in  all  cases  to 
approach  as  near  as  necessary  to  approach  an  elevator  that  may 
be  erected  by  the  applicant  or  applicants  adjacent  to  their  right 
of  way  for  the  purpose  of  loading  grain  into  cars  from 
said  elevator,  and  for  handling  and  shipping  grain  to  all 
persons  or  associations  so  erecting  or  operating  such  eleva- 
tors, or  handling  and  shipping  grain,  without  favoritism  or 
discrimination  in  any  respect  whatever."  One  of  the  conten- 
tions made  in  the  argument  against  the  validity  of  this  law  was 
that  it  conflicted  with  the  commerce  clause  of  the  Constitution 
of  the  United  States.  This  contention  was  not  determined,  as 
the  law  was  held  invalid  because  it  failed  to  provide  indemnity 
to  the  carrier.^"* 

A   regulation   requiring   a   carrier   to   deliver   cars   beyond   its 

"Atlantic  C.  L.  R.  Co.  v.  North  ""  Alissouri  Pac.  Ry.  Co.  z:  Xe- 

Carolina  Corp.  Com..  206  U.  S.  1,  braska,   164  U.   S.   403.   41   L.   Ed. 

51    L.    Ed.    933;    27    Sup.    Ct.    585,  489.    17    Sup.    Ct.    130. 

affirming    North    Carolina    Corp.  "  Missouri  Pac.  Ry.  Co.  v.  Xe- 

Corn.  c'.  Atlantic  C.  L.  R.  Co.,  137  braska.  217  U.   S.   196,  54  L.   Ed. 

X.  C.  1,  49  S.  E.  191,  115  Am.  St.  727,  30  Sup.  Ct.  461. 
Rep.   636. 


§  13.]  Affecting  Interstate  Commerce.  21 

tracks  to  a  private  switch  is  illegal.^^  In  McNeill  v.  Southern 
Ry.  Co.,  cited  note,  supra,  the  North  Carolina  Corporation  Com- 
mission entered  an  order  requiring  the  railway  company,  upon 
payment  of  freight  charges,  to  make  delivery  of  the  cars  beyond 
its  right  of  way  on  the  siding  of  a  private  coal  company.  The 
order  was  held  invalid  as  "amounting  to  an  unlawful  interfer- 
ence with  interstate  commerce." 

That  a  spur  track  ordered  by  a  state  commission  may  be  for 
the  present  benefit  of  only  one  industry,  does  not  make  the  con- 
demnation of  property  necessary  for  the  construction  of  the  spur 
track  the  taking  of  property  for  a  private  purpose.^^  A  state 
has  no  power  to  compel  a  carrier  to  switch  cars  from  a  con- 
nection with  a  competing  road  to  a  designated  side  track  within 
its  own  terminals  for  the  purpose  of  being  laden  with  freight 
for  immediate  transportation. o"  If  the  transportation  is  intra- 
state, different  carriers  may  be  compelled  by  state  authority  to 
interchange  freight."^ 

§  13.  Requiring"  Physical  Connections  between  Car- 
riers.— In  the  Jacobson  case,^''^  under  authority  of  a  law  of  Min- 
nesota, the  State  Railroad  Commission  ordered  a  connection 
between  two  common  carriers  of  the  state,  and  this  order  the 
courts  enforced.  The  carriers  contended  that  the  order  was 
void  as  an  unreasonable  regulation  of  commerce,  and  that  in 
rec[uiring  the  construction  of  the  connecting  track,  the  order 
and  judgment  took  property  without  due  process  of  law.  In 
the  brief  the  contention  was  made  that  the  law  upon  which  the 
proceedings  were  had  was  "an  ill-disguised  attempt  to  control 
and  regulate  interstate  trafiic."  The  court  did  not  construe  the 
order  as  directly  afifecting  interstate  commerce  and  overruled  the 
other  contentions  of  the  plaintiff  in  error.  The  opinion  con- 
cludes as  follows : 

"In   this   case   the   provision   is   a   manifestly   reasonable   one, 

"  Central    Stock    Yards    Co.    v.  '"''  111.     C.     R.     Co.     v.     Railroad 

Louisville   &  N.   R.   Co.,   118   Fed.  Com.    of    La..    236    U.    S.    157,    59 

113,   55  ~C.    C.   A.   63,   63    L.    R.   A.  L.  '  Ed.   — ,    35    Sup.    Ct.    275. 

213;    McNeill  v.  So.  Ry.  Co..  202  ''Mich.   C.   R.    Co.  v.   Mich.   R. 

U.  S.  543,  50  L.  Ed.  1142,  26  Sup.  Com.,    236    U.    S.    615,    59    L.    Ed. 

Ct.    722.  — .   35   Sup.   Ct.  423. 

"'Union    Lime    Co.    v.    Chicago  "'Wisconsin  M.  &  P.  R.  Co.  v. 

8z  N.  W.   Ry.   Co.,  233  U.   S.  211,  Jacobson,  179  U.  S.  287,  45  L.  Ed. 

58   L.    Ed.  924,   34   Sup.    Ct.   522.  104,   21    Sup.    Ct.    115. 


22  State  Regulatiox  [§  13. 

tending  directly  to  the  accommodation  of  the  pubHc,  and  in  a 
manner  not  substantially  or  unreasonably  detrimental  to  the  ul- 
timate interests  of  the  corporation  itself. 

"Although  to  carry  out  the  judgment  may  require  the  exer- 
cise by  the  plaintiff  in  error  of  the  power  of  eminent  domain, 
and  will  also  result  in  some,  comparatively  speaking,  small  ex- 
pense, yet  neither  fact  furnishes  an  answer  to  the  application 
of  defendant  in  error." 

The  Jacobson  case  differ^  from  the  McNeill  case,  Sec.  12, 
supra,  in  that  in  the  ^IcXeill  case  there  was  an  order  to  con- 
nect with  a  private  plant,  while  in  the  Jacobson  case  two  state 
common  carriers  were  directed  to  make  a  physical  connection. 
In  the  Jacobson  case,  the  Supreme  Court  said  arguendo  that  the 
order  for  the  connection  there  did  not  aft'ect  interstate  com- 
merce, and  Mr.  Justice  Peckham,  for  the  court,  said: 

"But  the  Supreme  Court  of  the  state,  in  the  opinion  deliv- 
ered therein,  said  that  there  was  ample  evidence  in  the  case  of 
a  necessity  for  such  track  connection  resulting  from  the  benefit 
which  would  accrue  to  exclusively  state  commerce,  when  con- 
sidered alone,  to  justify  the  ordering  of  the  connection  in  ques- 
tion." 

In  the  Jacobson  case  the  regulation  only  incidentally  affected 
interstate  commerce :  in  the  McNeill  case  the  regulation  had 
direct  reference  to  interstate  commerce.  In  discussing  the  Mc- 
Neill case,  Mr.  Justice  White  said : 

"The  cars  of  coal  not  having  been  delivered  to  the  consignee, 
but  remaining  on  the  tracks  of  the  railway  company  in  the  con- 
dition in  which  they  had  been  originally  brought  into  North  Car- 
olina from  points  outside  of  that  state,  it  follows  that  the  inter- 
state transportation  of  the  property  had  not  been  completed  when 
the  corporation  commission  made  the  order  complained  of." 

These  facts  clearly  dift'erentiate  the  two  cases,  and  make  the 
respective  opinions  harmonious. 

The  more  recent  case  of  the  Larabee  !Mills  ^^  is  interesting 
and  instructive.  In  that  case  the  Supreme  Court  of  Kansas 
compelled,  by  mandamus,  the  ^lissouri  Pacific  Railway  Com- 
pany to  deliver  cars  from  another  road  over  existing  transfer 
tracks  to  the  mill  of  the  Larabee  ^lills,  that  the  mill  might  be 

""  Missouri  Pac.  Ry.  Co.  z:  Lar-  r,12.  53  L.  Ed.  352.  29  Sup.  Ct. 
abee    Flour    Mills    Co.,    211    U.    S.       214. 


§  13.]  Affecting  Interstate  Commerce.  23 

enabled  to  ship  out  its  manufactured  product,  three-fifths  of 
which  went  to  points  outside  the  state  of  Kansas.  It  appeared 
that  the  railway  company  accorded  similar  privileges  to  other 
flour  mills  along  its  right  of  way.  In  the  Supreme  Court  of 
the  United  States  the  railroad  relied  strongly  on  the  McNeill 
case.  The  two  cases  are  much  alike.  In  the  McNeill  case  the 
delivery  of  loaded  cars  was  sought  over  a  private  track  to  a 
coal  yard ;  who  built  the  track  is  not  disclosed.  In  the  Larabee 
^lills  case  the  delivery  of  empty  cars  was  sought  over  a  track, 
the  ownership  of  which  is  not  disclosed,  but  which  was  essen- 
tially for  the  private  use  of  the  mill.  In  the  McNeill  case  it 
appears  that  the  coal  cars  were  brought  from  another  state,  al- 
though it  must  have  been  true  that  at  times  the  spur  track  was 
used  in  intrastate  transportation ;  in  the  Larabee  Mills  case 
there  was  both  interstate  and  intrastate  transportation  from  the 
mill.  Thus  far  there  seems  to  be  no  legal  distinction  between 
the  two  cases.  There  is.  however,  one  clear  distinction.  The 
order  in  the  Larabee  ^lills  case  was  made  to  prevent  discrim- 
ination ;  such  fact  does  not  appear  in  the  McNeill  case.  In  the 
Larabee  ]\Iills  case  it  was  contended  by  the  railroad  "that  no 
duty  was  imposed  on  the  railroad  company  by  act  of  the  legisla- 
ture or  mandate  of  commission  or  other  administrative  board." 
To  this  argument  Mr.  Justice  Brewer  answered : 

"No  legislative  enactment,  no  special  mandate  from  any  com- 
mission or  other  administrative  board  was  necessary,  for  the 
duty  arose  from  the  fact  that  it  was  a  common  carrier.  This 
lies  at  the  foundation  of  the  law  of  common  carriers.  When- 
ever one  engages  in  that  business  the  obligation  of  equal  service 
to  all  arises,  and  that  obligation,  irrespective  of  legislative  ac- 
tion or  special  mandate,  can  be  enforced  by  the  courts.  *  *  * 
All  these  questions  are  disposed  of  by  one  well-established  prop- 
osition, and  that  is,  that  a  party  engaging  in  the  business  of  a 
common  carrier  is  bound  to  treat  all  shippers  alike  and  can  be 
compelled  to  do  so  by  mandamus  or  other  proper  writ." 

What,  then,  the  Supreme  Court  of  Kansas  did  was  to  enforce 
the  common-law  duty  of  the  carrier  to  treat  all  shippers  alike. 
This  it  had  the  right  to  do  prior  to  action  by  Congress  or  the 
Commission  appointed  by  Congress,  even  though  in  doing  so  in- 
terstate commerce  might  be  affected.  This  principle  Mr.  Jus- 
tice Brewer  states :  , 

"This  case  does  not  rest  upon  any  distinction  between  interstate 


24  State  Regulation*  [§  13. 

commerce  and  that  wholly  within  the  state.  It  is  the  contention 
of  counsel  for  the  mill  company  that  it  comes  within  the  oft- 
repeated  rule  that  the  state,  in  the  absence  of  express  action  by 
Congress,  may  regulate  many  matters  which  indirectly  affect 
interstate  commerce,  but  which  are  for  the  comfort  and  conven- 
ience of  its  citizens.  Of  the  existence  of  such  a  rule  there 
can  be  no  question.  It  is  settled  and  illustrated  in  many  cases. 
*  *  *  The  mere  grant  by  Congress  to  the  commission  of  cer- 
tain national  powers  in  respect  to  interstate  commerce  does  not 
of  itself  and  in  the  absence  of  action  by  the  commission  inter- 
fere with  the  authority  of  the  state  to  make  those  regulations 
conducive  to  the  welfare  and  convenience  of  its  citizens." 

In  discussing  the  McNeill  case,  I\Ir.  Justice  Brewer  said : 

"There  are  many  points  of  resemblance  between  that  case  and 
this,  but  there  is  this  substantial  distinction :  In  that  was  pre- 
sented and  determined  solely  the  power  of  a  state  commission 
to  make  orders  respecting  the  delivery  of  cars  engaged  in  inter- 
state commerce  beyond  the  right  of  way  of  the  carrier  and  to  a 
private  siding — an  order  which  affected  the  movement  of  the  cars 
prior  to  the  completion  of  the  transportation,  while  here  is  pre- 
sented, as  hereinbefore  indicated,  the  question  of  the  power  of 
the  state  to  prevent  discrimination  between  shippers,  and  the 
common-law  duty  resting  upon  a  carrier  was  enforced.  This 
common-law  duty,  the  state,  in  a  case  like  the  present,  may,  at 
least  in  the  absence  of  congressional  action,  compel  a  carrier  to 
discharge." 

Mr.  Justice  ]\Ioody  dissented,  placing  his  dissent  on  the  ^Ic- 
Neill  case,  between  which  and  the  instant  case  he  saw  no  legal 
distinction. 

These  cases  were  determined  prior  to  the  passage  of  the 
Hepburn  Act,^^  which  act  extended  the  power  of  the  Interstate 
Commerce  Commission. 

Since  the  passage  of  that  act,  the  Supreme  Court  lia^  held 
void  a  state  regulation  requiring  a  physical  connection  between 
common   carriers   of   the   state   of   \^'ashington.^2      j^-^   this,   the 

''Act    June    29,    1906,    34    Stat.  '"Oregon     R.     &     Xav.     Co.     r. 

L.    584,    c.    3591,    U.    S.    Comp.    St.  Fairchild.  224  U.  S.  510.  56  L.  Ed. 

Supp.  1907,  p.  892,  Fed.  Stat.  Ann.  863,  32   Sup.  Ct.  535. 
Supp.   1907.  p.   168,   Sees.  338,  400. 


§  13.]  Affecting  Interstate  Commerce.  25 

Fairchild  case,  the  order  to  make  the  connection  was  held  void, 
the  reason  for  so  holding  being  stated  by  Mr.  Justice  Lamar  as 
follows : 

"There  is  nothing  by  which  to  compare  the  advantage  to  the 
public  with  the  expense  to  the  defendant  and  nothing  to  show 
that  within  the  meaning  of  the  law  there  is  such  public  necessity 
as  to  justify  an  order  taking  property  from  the  company." 

The  effect  of  the  order  on  interstate  commerce  was  not  dis- 
cussed, nor  was  that  question  raised,  it  seemingly  being  assumed 
that  the  order  related  to  intrastate  commerce. 

It  appears  from  the  authorities  and  in  view  of  the  enlarged 
powers  of  the  federal  commission  under  the  Acts  of  1906  and 
1910,  that  a  physical  connection  could  not  be  ordered  by  author- 
ity of  the  states  when  the  purpose  of  the  connection  was  wholly 
or  partly  to  accommodate  interstate  commerce.*'^  It  has,  how- 
ever, been  held,  and  upon  what  appears  to  be  sound  reasoning 
based   upon   authority,   that   such   connections   may   be   required 

''So.    Ry.    Co.   V.    Reid,    222   U.  318,   appeal 'dismissed    157    N.   Y. 

S.  424,  56  L.  Ed.  257,  32  Sup.  Ct.  674,   51   N.    E.   1092;    Gallagher   v. 

140;  United  States  v.  Union  Stock  Keating,    28    Misc.    Rep.    131,    58 

Yard  &  Transit  Co.,  226  U.  S.  286,  N.  Y.  Supp.  366.     Statute  author- 

57    L.    Ed.    226,    33    Sup.    Ct.    83;  izing     plant     tracks     to     connect 

New    York    C.    &    H.    R.    Co.    v.  valid,    Reeser    v.    Philadelphia    & 

Hudson  County,  227  U.  S.  248,  57  R.    Ry.    Co.,    215    Pa.    136,    64   Atl. 

L.   Ed.  499,  33   Sup.   Ct.  269;   Sea-  376.      May      require      connections 

board  A.  L.  Ry.  Co.  v.  R.  R.  Com.  though    roads    do    not    cross    at 

of  Georgia,  206  Fed.  181;  see  also  grade.   International   &   G.   N.   R. 

Atlantic    S.    R.    &    G.    Ry.    Co.   v.  Co.  v.   R.   R.   Com.   of  Texas,   99 

State,   42   Fla.  358,  29   So.   319,   89  Tex.  332,  89   S.  W.  961,  affirming 

Am.    St.    Rep.    233.      At    common  86    S.    W.    16,   —   Tex.    Civ.    App. 

law    individuals    could    not    force  — ;    Jacobson    v.    Wisconsin,    M. 

the      right      to      connect      private  &  P.  R.   Co.,  71  Minn.  519,  74  N. 

tracks,    People   v.    Chicago    &    N.  W.   893,  40  L.   R.  A.   389,   70  Am. 

W.  Ry.,  57  111.  436;  State  v.  Will-  St.    Rep.    358.      A    railroad    com- 

mar    &   S.    F.    Ry.    Co.,    88    Minn.  pany   is   not   compelled   to   switch 

448,  93  N.  W.  112.     No  objection  freight   which   was  not   consigned 

that  connection  is  with  main  line,  over    its    lines    from    the    line    of 

Morris    Draying    Co.    v.    Green-  one    railroad    to    that    of    another 

ville     &     H.     Ry.     Co.,    62    N.    J.  in  the  same  city,  Texas  &  N.  O. 

Eq.  768,  48  Atl.  568,  affirming  59  Ry.   Co.   v.   Gulf   &   I.   Ry.   Co.   of 

N.  J.  Eq.  372,  46  Atl.  638.     Law  Texas,    54    S.    W.    1031,    affirmed, 

may    apply    to    contiguous    roads  Gulf    &    I.    Ry.    Co.    v.    Texas    & 

which    do    not    cross.    New    York  N.   O.   Ry.    Co.,   56   S.   W.   328,   93 

L.  &  W.  Ry.  Co.  V.  Erie  R.  Co.,  Tex.  482. 
31  App.  Div.  378,  52  N.  Y.  Supp. 


26  State  Regulatiox  [§  14. 

when  made  to  accommodate  intrastate  commerce,  the  require- 
ment being  one  for  a  facility  for  transportation  and  in  no  way 
burdening  interstate  commerce.'''"'  The  use  of  terminal  facili- 
ties can  not  be  taken  from  one  carrier  for  the  benefit  of  an- 
other.'^ ^  This  does  not  mean  that  one  road  may  not  in  a  proper 
case  be  rec|uired  to  switch  the  cars  of  another  and  connecting 


earner 


6C 


§  14.  Delivery    over    Connecting  Tracks. — Railroads  are 

organized  for  a  public  purpose  and  to  serve  primarily  the  public 
good  and  convenience.  The  Interstate  Commerce  Commission 
has  power  to  require  physical  connections  between  interstate 
carriers,  and  hke  power  exists  in  the  states  so  far  as  the  require- 
ments of  intrastate  commerce  may  reasonably  demand. 

That  these  connections  may  serve  the  public  demands  and 
needs,  it  is  necessary  that  they  be  used.  How  far  then  may  a 
carrier  be  compelled  to  receive  and  deliver  cars  over  these  con- 
nections when  established? 

There  is  a  commerce  which  is  intrastate  and  a  commerce 
which  is  interstate.*  Each  may  be  served  by  these  connections,  and 
both  state  and  federal  authorities  may  act  for  the  purpose  of 
requiring  adequate  service  for  the  transportation  within  their 
respective  jurisdictions.  Neither  the  state  government  nor  the 
federal  government  may  require  the  establishment  of  facilities 
for  transportation  which  is  not  within  its  proper  sphere.  This  sit- 
uation makes  carriers  subject  to  independent  regulation  from  sep- 
arate tribunals  and  it  sometimes  is  a  difficult  question  to  determine 
which  tribunal  may  require  a  particular  facility,  the  facility  re- 
quired by  either  being  usually  for  the  benefit  of  the  commerce 
of  both. 

\\liile  this  duplication  of  control  over  carriers  is  frequently 
burdensome,  until  Congress  acts,  the  courts  must  adjust  the  con- 
flicting regulations  as  best  they  may.     Applying  these  principles 

"  Pittsburg.  C.  C.  &  St.  L.  Ry.  53  L.  Ed.  441,  29  Sup.  Ct.  246,  re- 
Co.  V.  Hunt,  in  Ind.  189.  S6  N.  versing  same  styled  case,  133  Ky. 
E.  328;  State  v.  Florida  E.  C.  Ry.  148,  97  S.  W.  778;  Commonwealth 
Co.,  58  Fla.  524,  50  So.  425;  Chi-  v.  Norfolk  &  W.  Ry.  Co.,  Ill  Va. 
cago,  I.  &  L.  Ry.  Co.  r.  R.  R.  59.  68  S.  E.  351. 
Com.  of  Indiana.  175  Ind.  630,  95  "''■  Penna.  R.  Co.  z'.  U.  S..  236  U. 
N.   E.  364.  S.   351,   59   L.    Ed.  — ,   35   Sup.    Ct. 

^Louisville  &  X.  R.  Co.  v.  Cen-  370. 
tral   Stock   Yards.   212    U.    S.    132. 


§  14.]  Affecting  Interstate  Commerce.  27 

it  can  not  be  doubted  that  the  states  may,  in  proper  cases,  re- 
c|uire  carriers  of  intrastate  commerce  to  receive  and  dehver  cars 
from  and  to  other  carriers  over  the  connections.  This  service 
must  be  necessary  and  must  be  reasonably  compensated  for, 
and  provision  must  exist  for  the  protection  of  the  carrier  in  its 
compensation  and  for  the  return  of  its  cars.*^^ 

That  a  carrier  may  be  compelled  to  transport  freight  over  the 
connection  between  the  terminus  of  another  line  to  a  team  track 
or  other  siding  on  its  own  line,  was  determined  by  the  Supreme 
Court  in  Grand  Trunk  Railway  Co.  v.  Alichigan  Railroad  Com- 
mission.'^s  In  this  case  discrimination  was  alleged  before  the 
Commission,  which  made  an  order  requiring  that  the  discrim- 
ination be  removed  and  that  a  new  tariff  be  filed  and  made  ef- 
fective granting  "like  charges  for  the  movement  of  a  carload 
shipment  received  from  an  industry  in  the  city  of  Detroit,  upon 
said  Grand  Trunk  \A''estern  Railway,  consigned  for  delivery 
upon  a  team  track  or  other  siding  of  said  road,  within  the  same 
city,   and    for   a   like   shipment   received   by   said   Grand   Trunk 

"  Central  Stock  Yards  v.  Lou-  Rep.  358;  Minneapolis  &  St.  L. 
isville  &  N.  R.  Co.,  192  U.  S.  568,  R.  Co.  v.  Minnesota,  186  U.  S. 
48  L.  Ed.  565,  2-4  Sup.  Ct.  339,  af-  257,  46  L.  Ed.  1151,  22  Sup.  Ct. 
firming  Central  Stock  Yards  Co.  900,  affirming  State  v.  Minneapo- 
V.  Louisville  &  N.  R.  Co.,  118  lis  &  St.  L.  R.  Co.,  80  Minn.  191, 
Fed.  113,  55  C.  C.  A.  63,  63  L.  R.  83  N.  W.  60,  89  Am.  St.  Rep.  514; 
A.  213;  Louisville  &  N.  R.  Co.  v.  Oregon  R.  &  Nav.  Co.  v.  Fair- 
Central  Stock  Yards  Co.,  212  U.  child,  224  U.  S.  510,  56  L.  Ed. 
S.  132,  53  L.  Ed.  441,  29  Sup.  Ct.  S63,  32  Sup.  Ct.  535,  reversing 
246,  reversing  Louisville  &  N.  R.  State  ex  rel.  Oregon  R.  &  N. 
Co.  V.  Central  Stock  Yards  Co.,  Co.  v.  R.  R.  Com.  of  Washing- 
133  Ky.  148,  97  N.  W.  778;  So.  ton,  52  Wash.  17,  100  Pac.  179. 
Ry.  Co.  V.  St.  Louis  Hay  &  Grain  "'  Grand  Trunk  Ry.  Co.  v. 
Co.,  214  U.  S.  297,  53  L.  Ed.  Michigan  R.  Com.,  231  U.  S.  451, 
1004,  29  Sup.  Ct.  678,  reversing  58  L.  Ed.  310,  34  Sup.  Ct.  152, 
So.  Ry.  Co.  z'.  St.  Louis  Hay  &  affirming  same  styled  case,  198 
Grain  Co.,  153  Fed.  728,  82  C.  C.  Fed.  1009.  To  same  effect  see 
A.  614.  Indemnity  may  be  re-  Chicago,  L  &  L.  Ry.  Co.  v.  R. 
quired  of  an  irresponsible  carrier,  R.  Com.  of  Indiana,  175  Ind.  630, 
Enterprise  Transportation  Co.  v.  95  N.  E.  364;  Thompson  v.  Mis- 
Pennsylvania  R.  Co.,  12  I.  C.  C.  souri,  K.  &  T.  Ry.  Co.,  105  Tex. 
326;  Wisconsin,  M.  &  P.  R.  Co.  372,  126  S.  W.  257,  on  rehearing 
V.  Jacobson,  179  U.  S.  287,  45  L.  128  S.  W.  109,  2  Ann.  Rep.  Ind. 
Ed.  194,  21  Sup.  Ct.  115,  affirming  Pub.  Ser.  Com.  107  ct  seq.,  Sea- 
Jacobson  v.  Wisconsin,  M.  &  P.  board  A.  L.  Ry.  Co.  v.  R.  R.  Com. 
R.  Co.,  71  Minn.  519,  74  N.  W.  of  Ga.,  206  Fed.  181,  213  Fed.  27. 
893,   40   L.   R.  A.   389,   70  Am.   St. 


28  State  Regulation  [§  14. 

Western  Railway  from  a  connecting  carrier  at  a  junction  point 
within  the  corporate  hmits  of  the  city  of  Detroit,  consigned  to  a 
team  track  or  other  siding  upon  said  road  within  the  same  city.'' 

The  carrier  filed  a  tariff  which  the  Commission  suspended 
and  an  injunction  was  sought.  The  question  arising  in  the  suit 
was  stated  by  the  Supreme  Court  as  follows : 

"The  question  in  the  case  is  whether,  under  the  statutes  of 
the  state  of  ^vlichigan,  appellants  can  be  compelled  to  use  the 
tracks  it  ozvns  and  operates  in  the  city  of  Detroit  for  the  inter- 
change of  intrastate  traffic;  or,  stating  the  question  more  spe- 
cifically, whether  the  companies  shall  receive  cars  from  another 
carrier  at  a  junction  point  or  physical  connection  with  such  car- 
rier within  the  corporate  limits  of  Detroit  for.  transportation  to 
the  team  tracks  of  the  companies ;  and  whether  the  companies 
shall  allow  the  use  of  their  team  tracks  for  cars  to  be  hauled 
from  their  team  tracks  to  a  junction  point  or  physical  connec- 
tion with  another  carrier  within  such  limits  and  be  required  to 
haul  such  cars  in  either  of  the  above-named  movements  or  be- 
tween industrial  sidings." 

The  question  thus  stated  was  resolved  in  favor  of  the  validity 
of  the  order  of  the  state  commission,  although  throughout  the 
opinion  emphasis  is  laid  upon  the  fact  of  "the  exceptional  sit- 
uation of  Detroit"  where  the  service  required  by  the  order  cov- 
ered an  area  of  twenty-two  miles. 

To  the  contention  that  the  last  order  suspending  the  tariff, 
which  was  the  order  involved,  interfered  with  interstate  com- 
merce, the  court  said,  "the  contention  is  premature,  if  not  with- 
out foundation."  The  question  as  stated  related  to  intrastate 
commerce,  and  the  answer  must  be  similarly  limited.  The  Ja- 
cobson  case,  cited  note  supra,  was  relied  on.  and  the  second  of 
the  Stock  Yards  cases,  cited  note  supra,  was  distinguished. 
Had  the  order  of  the  ]\Iichigan  Commission  required  the  trans- 
portation or  delivery  of  commodities  moving  to  or  from  another 
state,  it  would  have  been  a  direct  attempt  to  regulate  interstate 
commerce,  and  void  under  the  decisions  in  the  cases  of  McXeill 
V.  Southern  Ry.  Co.'^^  and  111.  C.  R.  Co.  v.  Railroad  Commission 

'"  McXeil    V.    So.    Ry.,    202    U.  Fed.  82.     See  Sec.   13  supra.     IW. 

S.    543,    50   L.    Ed.    1142.    26    Sup.  Cent.  R.  Co.  r.  Railroad  Com.  oi 

Ct.  722,  modifying  So.  Ry.  Co.  v.  La..   236  U.   S.   157,  59   L.   Ed.  — . 

Greensboro   Ice   &   Coal   Co..   134  35  Sup.   Ct.  275. 


§  15.]  Affectixg  Interstate  Commerce.  «       29 

of  Louisiana.  The  ^Michigan  case  referred  to  a  transportation 
service  to  be  performed  by  the  carrier  for  a  fixed  compensation 
and  does  not  answer  the  quccre  in  the  Riverside  Mills  case  ^° 
as  to  whether  or  not  "a  carrier  can  be  compelled  to  accept  goods 
for  transportation  beyond  its  own  hnes  or  be  required  to  make 
a  through  or  joint  rate  over  independent  lines."  The  Supreme 
Court  of  Georgia  has  answered  the  question,  negatively,' ^  the 
Judge  delivering  the  opinion  using  this  language : 

''A  corporation  may  voluntarily  make  a  contract  of  this  sort, 
but  there  is  no  law  that  we  know  of  which  compels  it  to  make 
one  against  its  wishes.  And,  speaking  for  myself,  I  doubt  very 
much  the  power  of  the  legislature  to  enact  a  law  compelling  a 
railroad  to  make  a  contract  for  a  through  bill  of  lading  beyond 
its  terminus." 

Under  the  Act  to  Regulate  Commerce  (sees.  338  and  400, 
post),  the  Interstate  Commerce  Commission  is  given  the  power, 
which  is  frequently  exercised,  to  require  connecting  carriers  to 
establish  through  routes  and  joint  rates,  and  there  appears  no 
reason  why  a  state  should  not,  as  to  intrastate  commerce  in  a 
proper  case,  compel  carriers  to  interchange  freight. 

§  15.  Regulating  Crossings. — The  state  may  regulate  pub- 
lic railroad  crossings.  The  police  powers  of  the  state  are  suf- 
ficient to  enable  them  to  protect  the  public  from  danger  at 
places  where  railroads  cross  public  streets  and  roads  and  where 
one  railroad  crosses  another.  Such  regulation,  although  affect- 
ing interstate  railroads,  falls  within  the  class  of  legislation 
"which,"  as  was  said  by  Chief  Justice  Marshall,  "can  be  most  ad- 
vantageously exercised  by  the  states  themselves."  "^  Congress 
has  not  attempted  to  legislate  on  the  subject,  and  that  state  leg- 
islation "relating  to  railway  crossings"  is  valid  has  been  deter- 

'"  Atlantic  C.  L.  R.  Co.  v.  Riv-  73  S.  E.  741.     To  the  same  effect, 

erside  Mills,  219  U.  S.  186,  55  L.  see    Lotsfreich    v.    Central    R.    & 

Ed.    167,    31    Sup.    Ct.    1G4.    31    L.  B.    Co.,   73    Ala.    306;    Gulf,    C.    & 

R.    A.    (N".    S.)    7.    affirming    Riv-  S.    F.    Ry.    Co.   v.   State,    50   Tex. 

erside   Mills   v.   Atlantic    C.   L.   R.  Civ.    App.    353.    120    S.    W.    1028; 

Co.,   168   Fed.   9S7.  Home     Tel.     Co.     v.     Granby     & 

"  Coles  V.  Central  R.  tS:  B.  Co.,  Neosho   Telephone    Co.,    114    Mo. 

86    Ga.    251.    12    S.    E.    749;    State  1111,    126   S.   W.   773. 

V.    Wrightsville    &    Ten.    R.    Co.,  "  Gibbons   v.   Ogden,   9   Wheat. 

104  Ga.  437.  30  S.  E.  891;  Wadley  22  U.  S.  1,  6  L.   Ed.  23. 
So.  Ry.  Co.  V.  State,  137  Ga.  497. 


30 


State  Regulation 


[§  15. 


mined  so  frequently  as  to  make  extensive  citation  of  authori- 
ties unnecessary  J  ^ 

Similar  to  the  power  of  the  states  to  regulate  crossings  is  the 
power  to  exercise  a  control  over  the  right  of  way.  A  law  of 
Texas  prescribing  the  duty  of  preventing  the  growth  of  partic- 
ular vegetation  was  held  valid.'"^  Regulations  requiring  guard 
posts  on  railroad  .trestles  and  bridges,  and  stock  gaps  at  cross- 
ings, are  within  the  police  power  of  a  state. "-^ 

A  law  of  the  state  of  Georgia  requires  railway  locomotives 
running  on  the  main  line  to  be  equipped  with  electric  headlights 
of  a  certain  prescribed  character.  Locomotives  thus  required  to 
be  equipped  were  used  in  hauling  interstate  freight,  and  it  was 
urged  that  the  statute  constituted  an  unwarrantable  interference 
with  interstate  commerce.  The  validity  of  the  statute  was  sus- 
tained by  the  Supreme  Court  of  Georgia,'''*  and,  upon  a  writ  of 
error  to  the  Supreme  Court  of  the  United  States,  the  judgment 
of  the  state  court  was  atifirmed.  The  Supreme  Court  of  the 
United  States  cited  as  controlling,  the  case  of  New  York,  N.  H. 
&  H.  R.  Co.  z'.  New  York,  165  U.  S.  628,  41  L.  Ed.  853,  17  Sup. 


''  Xcw  York  &  X.  E.  R.  r.  Bris- 
tol, 151  U.  S.  556.  3S  L.  Ed.  269, 
14  Sup.  Ct.  437.  extension  of 
giade  crossings;  Chicago,  B.  & 
Q.  R.  Co.  V.  Nebraska,  ITO  U.  S. 
57,  42  L.  Ed.  948,  18  Sup.  Ct. 
513,  viaduct  over  a  street;  Grand 
Trunk  Ry.  Co.  :■.  R.  R.  Com.  of 
Indiana,  221  U.  S.  400,  55  L.  Ed. 
786,  31  Sup.  Ct.  537,  interlocking 
plant  at  crossing  of  two  rail- 
roads; Grand  Rapids  &  I.  Ry. 
Co.  V.  Hunt,  38  Ind.  App.  657,  78 
N.  E.  358;  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  McNamare,  91  Ark. 
515,  122  S.  W.  102,  blocking 
frogs;  State  v.  Louisville  &  X.  R. 
Co.,  177  Lid.  553,  96  X.  E.  340; 
Atlantic  C.  L.  R.  Co.  v.  Golds- 
boro,  232  U.  S.  548,  58  L.  Ed.  721. 
34  Sup.  Ct.  364,  regulating  op- 
eration of  cars  in  streets  and  af- 
firming same  styled  case,  155  X. 
C.  356,  71   S.   E.   514. 


''  Mo.  K.  &  T.  Ry.  Co.  V.  May, 
194  U.  S.  267,  48  L.  Ed.  971,  24 
Sup.    Ct.   63S. 

''■  Alabama  Great  So.  R.  Co.  v. 
Fowler,  104  Ga.  148,  30  S.  E.  243; 
Xew  York  Cent.  &  H.  R.  R.  Co. 
V.  New  York,  165  U.  S.  628,  41 
L.  Ed.  853.  17  Sup.  Ct.  418,  af- 
firming 142  X.  Y.  646,  37  N.  E. 
568,  holding  valid  a  law  relating 
to  heating  trains.  See  the  case 
of  Chicago  M.  &  St.  P.  R.  Co.  v. 
Minneapolis,  232  U.  S.  430,  58  L. 
Ed.  671,  34  Sup.  Ct.  400;  same 
styled  case  115  Minn.  460,  133  N. 
W.  169,  Ann.  Cas.  1912D.  1027, 
and  cases  cited  in  the  opinion  of 
the  Supreme  Court  of  the  United 
States. 

•'■'  Atlantic  C.  L.  R.  Co.  v.  Geor- 
gia. 135  Ga.  545,  69  S.  E.  725,  32 
L.   R.  A.    (X.   S.)   20. 


§  16.]  Affecting  Interstate  Commerce.  31 

Ct.  418,  supra,  where  a  law  prescribing  regulations  concerning 
the  heating  of  cars  was  held  valid,  and  stated  the  principle  ap- 
plicable to  be:  "In  the  absence  of  legislation  by  Congress,  the 
states  are  not  denied  the  exercise  of  their  power  to  secure  safety 
in  the  physical  operation  of  railroad  trains  within  their  territory, 
even  though  such  trains  are  used  in  interstate  commerce."  '''' 
Having  in  mind  that  Congress  has  enacted  several  safety  appli- 
ance acts,'^'^  it  would  seem  that  there  is  reason  supporting  the 
argument  that  Congress  has  already  "occupied  the  field"  wherein 
"safety  in  the  physical  operation  of  railroad  trains"  is  provided. 
This  decision  .of  the  Supreme  Court  can  with  difficulty  be  recon- 
ciled with  a  subsequent  decision  of  the  Court,  holding  that  a 
law  of  Indiana  requiring  hand-holds  on  freight  cars  used  in 
interstate  commerce  was  void."^ 

§  16.  Elevator  Charges. — Transportation,  as  defined  by  the 
Act  to  Regulate  Commerce,  post.  Sec.  337.  includes  all  services 
in  connection  with  the  receipt,  delivery,  elevation,  and  transfer 
in  transit,  ventilation,  refrigeration  or  icing,  storage,  and  hand- 
ling of  property  transported. 

The  charges  for  elevating  products  as  a  part  of  an  interstate 
transportation  of  such  products  is  clearly  not  subject  to  state 
regulation,  but  must  be  prescribed  by  the  Interstate  Commerce 
Commission. ^^ 

In  the  Minnesota  Rate  Cases,  at  pp.  413,  414,  of  the  opinion, 
Mr.  Justice  Hughes  cited  the  Granger  cases  and  the  Railroad 
Commission  cases,  and  in  r-eferring  to  the  Munn  case,^^  said: 

"The  court  had  before  it  the  statute  of  Illinois  governing  the 
grain  warehouses  in  Chicago.  Through  these  elevators,  located 
with  the  river  harbor  on  the  one  side  and  the  railway  tracks  on 
the  other,   it  was  necessary,   according  to  the  course  of  trade, 

"Atlantic      C.     L.     R.     Co.     v.  baugh,    222    U.    S.    42.    56    L.    Ed. 

Georgia,  234  U.  S.  280,  58  L.  Ed.  83.    32    Sup.    Ct.    22;    Union    Pac. 

312.    34   Sup.    Ct.    829.  R.   Co.   v.  Updike   Grain   Co.,   222 

"Sec.    330.    tost,    appendices    B  U.   S.  215.  56  L.   Ed.   171.  32   Sup. 

to  J.  Ct.    39. 

'"Southern  R.  Co.  v.  R.  R.  Cr.m.  ''Simpson    et    al..    R.    R.    Com. 

of  Ind.,  236  U.   S.  439.  59   L.   Ed.  of   Minnesota  v.   Shepard.   230   U. 

— ,     35     Sup.     Ct.     304;     reversing  S.    352,    432.    433.    57    L.    Ed.    1511. 

same  styled  case.  179  Ind.  23,  100  33  Sup.  Ct.  729;  Munn  v.  Illinois. 

N.    E.    337.  94     U.     S.     (4     Otto)     113.     24     L. 

'"Int.      Com.      Com.    z:    Diffen-  Ed.    77. 


32  State  Regulation  [§  17. 

for  the  product  of  seven  or  eight  states  of  the  West  to  pass  on 
its  way  to  the  states  on  the  Atlantic  coast.  In  addition  to  the 
denial  of  any  legislative  authority  to  limit  charges  it  was  urged 
that  the  act  was  repugnant  to  the  exclusive  power  of  Congress 
to  regulate  interstate  commerce.  The  court  answered  that  the 
business  was  carried  on  exclusively  within  the  limits  of  the  state 
of  Illinois,  that  its  regulation  was  a  thing  of  domestic  concern 
and  that  'certainly,  until  Congress  acts  in  reference  to  their  in- 
terstate relation,  the  state  may  exercise  all  the  powers  of  gov- 
ernment over  them,  even  though  in  so  doing  it  may  indirectly 
operate  upon  commerce  outside  its  immediate  jurisdiction.'  In 
the  decision  of  the  railroad  cases,  above  cited,  the  same  opin- 
ion was  e.xpressed." 

Congress  did  act  in  1906.  and  now  the  states  may  not  regulate 
grain  and  similar  elevators  save  as  to  elevation  not  affecting  in- 
terstate commerce. 

§  17.  Through  Routes  and  Joint  Rates. — The  statute  pro- 
vides that,  as  to  transportation,  within  the  Act  to  Regulate  Com- 
merce, the  Interstate  Commerce  Commission  may  require  car- 
riers to  establish  through  routes,  the  Commission  having  the 
power  to  prescribe  the  rate  and  determine  the  divisions.^-  A 
state  legislative  act  under  which  through  routes  and  joint  rates 
are  prescribed,  is  valid  when  interstate  commerce  is  not  directly 
affected  and  when  the  requirement  therefor  is  reasonable. ^^  In 
the  absence  of  a  statute,  through  routing  could  not  be  enforced,^'* 
and,  as  said  by  ]\Ir.  Justice  Holmes, ^^  "the  requirement  to  de- 
liver, transfer  and  transport  freight  to  any  point  where  there  is 

•^  Sec.    399,    post;    and    a    state  **  In   Wadley   So.    Ry.   v.   State, 

commission.      as      to      intrastate  137    Ga.    497.    507,    73    S.    E.    741, 

commerce,  may  apportion  a  joint  the    Supreme     Court    of    Georgia 

rate,    State   v.    Minneapolis    &   St.  said:      "It    is    true    that    railroad 

Iv.    R.    Co.,    80    Minn.    191,    83    N.  companies  can  not  be  required  to 

W.   60,   89   Am.    St.   Rep.    514,   af-  issue   through   bills   of   lading,   or 

firmed    Minneapolis    &    St.    L.    R.  to  contract  to  forward  goods  be- 

Co.  V.  State  of  Minnesota,  186  U.  yond    their    own    lines.      Coles    v. 

S.    257,    46    L.    Ed.    1151,    22    Sup.  Central   R.   Co.,   86    Ga.   251,   12   S. 

Ct.  900.  E.  749:  State  v.  W.  &  T.  R.  Co., 

*^  But    such    a    statute    affecting  104  Ga.  437     30  S.   E.  891." 
interstate    transportation   is    void,  *'  Central  Stock  Yards  v.  Louis- 
Lowe  V.  Seaboard  A.  L.  Ry.  Co.,  ville  &  X.  R.  Co.,  192  U.  S.  568, 
63  S.  C.  248,  41  S.  E.  297,  90  Am.  571,    48    L.    Ed.    565,    24    Sup.    Ct. 
St.  Rep.  678.  339. 


§  18.]  Affecting  Interstate  Commerce.  33 

a  physical  connection  between  the  tracks  of  the  railroad  com- 
panies mnst  be  taken  to  refer  to  cases  where  the  freight  is  des- 
tined to  some  further  point  by  transportation  over  a  connecting 
line." 

As  to  intrastate  commerce,  a  state  may  prohibit  discrimination 
by  a  carrier  against  another,  and  where  a  joint  rate  is  established 
it  is  subject  to  governmental  regulation. ^*5  This  does  not  mean 
that  a  carrier  may  be  compelled  to  make  a  contract  to  deliver 
over  another  road,  but  carriers  may  be  compelled  to  deliver 
freight  to  and  receive  freight  from  a  connecting  carrier.^" 

States,  however,  have  no  power  to  compel  a  carrier  to  switch 
cars  between  a  connection  with  a  competing  interstate  carrier  and 
a  designated  side  track  within  its  own  terminals,  when  such 
movement  is  for  the  accommodation  of  interstate  traffic.-^ 

§  18.  Regulation  of  the  Movement  of  Trains.  Sunday 
Law. — The  legislature  of  the  state  of  Georgia  prohibited  the 
running  of  freight  trains  on  any  road  in  the  state  on  Sunday. 
There  were  certain  exceptions  referring  to  trains  carrying  live 
stock  and  delayed  trains.  A  conviction  being  had  under  the 
statute,  and  an  affirmance  thereof  by  the  highest  state  court,  the 
case  was  appealed  to  the  Supreme  Court.  That  court  sustained 
the  Georgia  statute. ^^  Mr.  Justice  Harlan,  concluding  the  opin- 
ion, said: 

"The  statute  of  Georgia  is  not  directed  against  interstate  com- 
merce. It  establishes  a  rule  of  civil  conduct  applicable  alike  to 
all  freight  trains,  domestic  as  well  as  interstate.  It  applies  to  the 
transportation  of  interstate  freight  the  same  rule  precisely  that 

*' Stephens    v.    Central    of    Ga.  R.  Com.  of  Tex..  Tex.  Civ.  App., 

Ry.    Co.,    138    Ga.   625,    631,   75    S.  86  S.  W.  16,  affirmed  same  styled 

E.   1041,   42  L.   R.  A.    (N.   S.)    541,  case,   99   Tex.   332,   89    S.   W.   961; 

1913E,    Ann.     Cas.    609;    Wadley  Inman  v.  St.  L.  S.  W.  R.  Co.,  14 

Southern    Ry.    Co.    v.    State.    137  Tex.  Civ.  App.  39,  37  S.  W.  37. 
Ga.  497,  73  S.  E.  741.     Affirmed:  ''Illinois  C.  R.  Co.  v.  Railroad 

Wadley  S.  R.  Co.  v.  Georgia,  235  Com.  of  La.,  236  U.  S.  157,  59  L. 

U.    S.    651,.  59   L.    Ed.  — ,    35    Sup.  Ed.   — ,    35    Sup.    Ct.    275. 
Ct.   214.  ^Hennington  v.  Georgia,  163  U. 

"§  14,  supra;  Hudson  V.  R.  S.  299,  41  L.  Ed.  166,  16  Sup.  Ct. 
Co.  V.  Boston  &  M.  R.  Co.,  45  1086;  Simpson,  et"  al.,  R.  R.  Com. 
Misc.  520,  92  N.  Y.  Supp.  928,  af-  of  Minnesota  v.  Shepard,  230  U. 
firmed  same  styled  case,  106  App.  S.  352,  432,  433,  57  L.  Ed.  1511, 
Div.  375,  94  N.  Y.  Supp.  545;  In-  33  Sup.  Ct.  729. 
ternational  &  G.  N.  R.  Co.  v.  R. 
<>. 


34  State  Regulation  [§  19. 

it  applies  to  the  transportation  of  domestic  freight.  And  it 
places  the  business  of  transporting  freight  in  the  same  category 
as  all  other  secular  business.  It  simply  declares  that,  on  and 
during  the  day  fixed  by  law  as  a  day  of  rest  for  all  people  within 
the  limits  of  the  state  from  toil  and  labor  incident  to  their  call- 
ings, the  transportation  of  freight  shall  be  suspended. 

"We  are  of  the  opinion  that  such  a  law,  although  in  a  limited 
degree  affecting  interstate  commerce,  is  not  for  that  reason  a 
needless  intrusion  upon  the  domain  of  federal  jurisdiction,  nor 
strictly  a  regulation  of  interstate  commerce,  but,  considered  in 
its  own  nature,  is  an  ordinary  police  regulation  designed  to  se- 
cure the  well  being  and  to  promote  the  general  welfare  of  the 
people  within  the  state  by  which  it  was  established,  and  there- 
fore not  invalid  by  force  alone  of  the  Constitution  of  the  United 
States." 

§  19.  Sa.me  Subject.  Requiring  the  Operation  of  a  Par- 
ticular Train. — An  order  of  a  railroad  commission  made  un- 
der adequate  statutor}^  authority,  which  requires  a  railroad  com- 
pany to  furnish  transportation  between  two  points  in  the  state, 
and  to  arrange  its  schedule  to  make  connections  with  through 
interstate  trains,  is  not,  when  required  by  public  convenience, 
illegal.  Nor  is  such  order  unreasonable  because  the  operation 
of  the  particular  train  required  by  the  order  may  entail  some 
pecuniary  loss  to  the  carrier.^" 

The  Railroad  Commission  of  Kansas,  after  hearing,  ordered 
an  interstate  railroad  to  operate  a  passenger  service  from  a  point 
within  the  state  to  the  state  line,  although  the  railroad  had  no 
station  at  the  state  line.  The  Supreme  Court  of  the  United 
States,  having  found  that  the  order  was  not  arbitrary  or  unrea- 
sonable, discussed  and  determined  the  contention  made,  that  the 
order  was  void  because  it  operated  as  a  direct  burden  upon  in- 
terstate commerce.  In  support  of  the  contention  the  carrier 
urged  "that  the  charter  of  the  Interstate  Railroad  Company, 
the  builder  of  the  branch,  provided  for  a  road  not  only  in  Kan- 
sas but  to  extend  into  Texas  and  ^Missouri,  and  therefore  for  an 
interstate  railroad." 

""Atlantic  C.  L.  R.  Co.  v.  North  involved  in  this  case  was  not  con- 
Carolina  Corp.  Com.,  206  U.  S.  sidered.  This  decision  affirms 
1,  51  L.  Ed.  933,  27  Sup.  Ct.  585,  North  Carolina  Corp.  Com.  v.  At- 
11  Ann.  Cas.  398.  The  effect  on  lantic  C.  L.  R.  Co.,  137  N.  C.  1. 
interstate  commerce  of  the  order  49  S.  E.  191,  115  Am.  St.  Rep.  636. 


§  19.]  Affecting  Interstate  Commerce.  35 

The  court  held  that  the  charter  of  the  railroad  "did  not  change 
the  nature  and  character  of  our  constitutional  system  and,  there- 
fore, did  not  destroy  the  power  of  Kansas  over  its  domestic  com- 
merce," and  that  the  order  being  reasonable  was  not  void ;  and, 
in  concluding  the  opinion  of  the  court,  Mr.  Justice  (later  Mr. 
Chief  Justice)   White  said  :  "^ 

"Even  if  the  performance  of  the  duty  of  furnishing  adequate 
local  facilities  in  some  respect  affected  interstate  commerce,  it 
does  not  necessarily  result  that  thereby  a  direct  burden  on  in- 
terstate commerce  would  be  imposed." 

\\nien  it  was  sought  to  enjoin  an  order  of  the  New  York  Pub- 
lic Service  Commission,  which  required  the  carrier  to  restore 
certain  trains  which  had  been  discontinued,  the  district  judge 
held,  under  the  facts  there  of  record,  that  such  an  order  was 
void.  It  appeared  that,  without  the  trains  which  had  been  dis- 
continued, the  service  accommodated  the  necessities  of  the  peo- 
ple, and  that  to  operate  the  additional  trains  would  mean  a  loss 
to  the  carrier.  Under  the  facts  the  judge  aptly  said :  "What 
is  reasonable  and  what  is  reasonably  necessary  is  not  to  be  de- 
termined by  the  occasional  wants  and  wishes  and  convenience 
of  a  very  few  people  living  at  points  along  the  line.®^  Jn  hold- 
ing void  a  statute' of  Wisconsin  requiring  "that  every  village 
having  two  hundred  or  more  inhabitants  and  a  post  office,  and 
being  within  one-eighth  of  a  mile  of  a  railroad,  must  be  given 
by  such  railroad  the  accommodation  of  at  least  two  passenger 
trains  each  way  each  day,  if  four  or  more  passenger  trains 
are  run  each  way  daily,"  the  authorities  are  cited  by  the  Su- 
preme Court  and  the  principles  established  by  the  authorities 
given  as  follows:  "(1)  It  is  competent  for  a  state  to  require 
adequate  local  facilities,  even  to  the  stoppage  of  interstate  trains 
or  the  rearrangement  of  their  schedules.  (2)  Such  facilities  ex- 
isting— that  is,  the  local  conditions  being  adequately  met — the 
obligation  of  the  railroad  is  performed,  and  the  stoppage  of  in- 
terstate trains  becomes  an  improper  and  illegal  interference  with 
interstate  commerce.     (3)    And  this,  whether  the  interference  be 

"  Missouri  Pac.  Ry.  Co.  v.  Kan-  Sup.      Ct.    121.      See    also    State 

sas,  216  U.  S.  262,  283,  284,  54  L.  v.  Chicago,  M.  &  St.  P.  R.  Co.,  11 

Ed.    472,    30    Sup.    Ct.    330.    citing  S.    D.    282,    77    N.   W.    104. 
Atlantic  C.  L.  R.  Co.  v.  Wharton,  "'  Delaware  L.   &  W.   R.   Co.  v. 

207   U.    S.   328,   52   L.   Ed.   230,   28  Van   Santwood,  216  Fed.  252. 


36  State  Regulation  [§  20. 

directly  by  the  legislature  or  by  its  command  through  the  orders 
of  an  administrative  body  (4)  The  fact  of  local  facilities  this 
court  may  determine,  such  fact  being  necessarily  involved  in 
the  determination  of  the  federal  question  whether  an  order  con- 
cerning an  interstate  train  does  or  does  not  directly  regulate  in- 
terstate   commerce,    by    imposing   an    arbitrary    requirement."  ^^ 

§  20.  Same  Subject.  Speed  of  Trains. — In  the  absence  of 
legislation  by  Congress,  a  city  ordinance  regulating  the  speed 
limit  of  trains  within  the  city  limits,  is  not  as  to  interstate  trains 
unconstitutional.  This  law  was  announced  by  Mr.  Justice 
Brewer  (Erb  z'.  Morasch,  177  U.  S.  584,  44  L.  Ed.  897,  20  Sup. 
Ct.  819),  who  said: 

"A  city,  when  authorized  by  the  legislature,  may  regulate  the 
speed  of  railroad  trains  within  the  city  limits.  Richmond,  F. 
&  P.  R.  Co.  V.  Richmond,  96  U.  S.  521,  24  L.  Ed.  734;  Cleveland, 
C.  C.  &  St.  L.  R.  Co.  V.  Illinois  ex  rel.  Jett,  177  U.  S.  514,  44  L. 
Ed.  868,  20  Sup.  Ct.  Rep.  722.  Such  act  is,  even  to  interstate 
trains,  one  only  indirectly  affecting  interstate  commerce,  and  is 
within  the  power  of  the  state  until  at  least  Congress  shall  take 
action  in  the  matter." 

A  statute  of  Nebraska  fixing  a  rate  of  speed  for  cattle  trains 
moving  between  points  within  the  state  and  providing  a  sum 
as  liquidated  dam-ages  for  its  violation,  is  valid,  the  Su- 
preme Court  of  the  United  States  having  held  that  the  legisla- 
ture had  power  "to  impose  a  limitation  of  the  time  for  the  trans- 
portation of  live  stock"  and  "to  provide  a  definite  measure  of 
damages,"  such  damages  being  "difficult  to  estimate  or  prove."  ^^ 

§  21.  Same  Subject.  Requirement  That  Trains  Shall 
Stop  at  Particular  Stations. — In  determining  whether  or  not 
a  state  statute  or  a  regulation  of  a  state  commission  indirectly 
affecting  interstate  commerce  is  valid,  the  Supreme  Court  looks 
to  the  facts  to  see  whether  or  not  the  regulation  is  reasonable. 
To  require  a  train  to  run  at  a  low  rate  of  speed  through  a  city 

"^^  Chicago,    B.    &    Q.    R.    Co.    r.  R.   A.    (X.   S.)    1022,   85   Neb.   586, 

Railroad  Com.  of  Wis..  237  U.  S.  123   X.  W.   1045,  26  L.   R.  A.   (X. 

220,  59  L.  Ed.  — ,  35  Sup.  Ct.  560.  S.)    1028.    19   Ann.    Cas.    170;    Chi- 

"  Chicag-o,    B.    &    Q.    R.    Co.   v.  cago,  B.  &  Q.  R.  Co.  v.  Kyle,  22,S 

Cram,  228  U.  S.  70,  84,  57  L.   Ed.  U.    S.   85,    57   L.    Ed.   741,   33    Sup. 

734,     33     Sup.     Ct.     437.   affirming  Ct.   440.   affirming   Kyle  v.   C,   B. 

Cram  v.  Chicago,  B.  &  Q.  R.  Co.,  &  Q.  R.  Co.,  84  Xeb.  621,  122  X. 

84  Xeb.  607,   122  X.  W.  31.  2fi   L.  W.   37. 


§  21.]  Affecting  Interstate  Commerce.  Z7 

may  cause  more  delay  than  to  require  such  train  to  stop  at  a  par- 
ticular station  three  minutes.  We  have  just  seen  in  the  preceding 
section  that  the  limitation  of  speed  was  held  legal.  This  was  be- 
cause the  regulation  was  necessary  and  reasonable.  A  regula- 
tion, however,  to  stop  an  interstate  train  at  a  point  where  rea- 
sonable facilities  for  travel  already  exist  is  unreasonable  and 
an  invalid  attempt  to  regulate  interstate  commerce.^-^  This  is 
true  because  the  regulation  was  not  a  reasonable  exercise  of  the 
police  power  of  the  state.  The  opinion  written  by  Mr.  Justice 
Peckham  concludes : 

"The  transportation  of  passengers  on  interstate  trains  as  rap- 
idly as  can  with  safety  be  done  is  the  inexorable  demand  of  the 
public  who  use  such  trains.  Competition  between  great  trunk 
lines  is  fierce  and  at  times  bitter.  Each  line  must  do  its  best  even 
to  obtain  its  fair  share  of  the  transportation  between  states,  both 
of  passengers  and  freight.  A  wholly  unnecessary,  even  though 
a  small,  obstacle,  ought  not,  in  fairness,  to  be  placed  in  the  way 
of  an  interstate  road,  which  may  thus  be  unable  to  meet  the  compe- 
tition of  its  rivals.  We  by  no  means  intend  to  impair  the  strength 
of  the  previous  decisions  of  this  court  on  the  subject,  nor  to  as- 
sume that  the  interstate  transportation,  either  of  passengers  or 
freight,  is  to  be  regarded  as  overshadowing  the  rights  of  the 
residents  of  the  state  through  which  the  railroad  passes  to  ade- 
quate railroad  facilities.  Both  claims  are  to  be  considered,  and 
after  the  wants  of  the  residents  within  a  state  or  locality  through 
which  the  road  passes  have  been  adequately  supplied,  regard  be- 
ing had  to  all  the  facts  bearing  upon  the  subject,  they  ought  not 
to  be  permitted  to  demand  more,  at  the  cost  of  the  ability  of  the 
road  to  successfully  compete  with  its  rivals  in  the  transportation 
of  interstate  passengers  and  freight." 

A  requirement  of  the  law  of  the  state  of  Illinois  that  an  in- 
terstate mail  and  passenger  train  should  run  to  a  county  seat  three 
and  a  half  miles  ofif  the  main  line  is  an  unconstitutional  inter- 
ference and  obstruction  of  interstate  commerce.^'''  A  purely 
local  train,  however,  although  carrying  passengers  and  mail  des- 

°°  Mississippi   Railroad    Com.   v.  v.  St.  L.  &  S.  F.  R.  Co.,  105  Mo. 

111.    Cent.    R.    Co.,    203   U.    S.    335,  App.   207,   79   S.   W.   714. 
51  L.  Ed.  209,  27  Sup.  Ct.  90.     See  '"  111.    Cent.    R.    Co.    v.    Illinois, 

notes  54  L.  Ed.  U.  S.  Reports  970.  163   U.   S.   142,   41   L.    Ed.   107,   16 

14  L.  R.  A.   (N.  S.)  293,  and  State  Sup.   Ct.   1096. 


38  State  Regulation  [§  22. 

tined  to  points  beyond  the  state,  may  properly  be  required  to 
stop  at  county  seats  directly  on  the  line  traversed  by  such  train. ^''^ 

The  Mississippi  case,  supra,  may,  upon  a  casual  reading,  ap- 
pear in  conflict  with  a  former  decision  of  the  Supreme  Court. ^^ 
The  causes,  however,  are  easily  distinguishable.  In  the  Missis- 
sippi case  the  facts  showed  that  there  were  reasonable  facilities 
for  travel  without  enforcing  the  order  therein  under  investigation. 
In  the  Ohio  case  all  trains  up  to  three  each  way  each  day  were 
required  to  stop.  Ultimately  the  question  of  whether  or  not  a 
particular  police  regulation  is  reasonable  must  be  passed  upon 
by  the  courts  and  in  one  case  the  Supreme  Court  held  the  regula- 
tion to  stop  unnecessary  and,  therefore,  unreasonable.  In  the 
other,  under  the  facts,  the  regulation  was  necessary  and,  therefore, 
reasonable.  The  Ohio  case  cites  and  discusses  the  authorities, 
and  the  conclusion  of  the  opinion  makes  reference  to  the  rule 
adopted  subsequently  in  the  Mississippi  case.  This  conclusion 
is  as  follows : 

"Our  present  judgment  has  reference  only  to  the  case  before 
us,  and  when  other  cases  arise  in  which  local  statutes  are  alleged 
not  to  be  legitimate  exertions  of  the  police  powers  of  the  state, 
but  to  infringe  upon  national  authority,  it  can  then  be  determined 
whether  they  are  to  be  controlled  by  the  decision  now  rendered. 
It  would  be  itnpracticable,  as  well  as  unwise,  to  attempt  to  lay 
down  any  rule  that  would  govern  every  conceivable  case  that 
might  be  suggested  by  ingenious  minds." 

The  ^lississippi  case  was  followed  upon  similar  facts. ^^ 

§  22.  State  Regulation  of  Carriers  and  Their  Employ- 
ees.— A  state  statute  recjuiring  engineers  to  be  examined  and 
licensed  is  not  void,  although  it  may  incidentally  and  remotely 
affect  interstate  commerce. ^'^'^ 

A  law  of  a  state  forbidding  those  affected  with  color  blindness 
from  acting  as  locomotive  engineers  is  a  valid  exercise  of  the 

"  Gladson  v.  Minnesota,  166  U.  230,  28  Sup.  Ct.  121;  Herndon  v. 

S.  427,  41  L.  Ed.  1064,  17  Sup.  Ct.  Chicago  R.  I.  &  P.  R.  Co.,  218  U. 

627.  S.  135,  54  L.  Ed.  970,  30  Sup.   Ct. 

"'Lake    S.    &   M.    S.   R.    Co.   v.  f.33. 
Ohio,    173    U.    S.    285,    43    L.    Ed.  ''^  Smith  v.   Alabama,   124  U.   S. 

702,   19  Sup.   Ct.  465.  465.  31  L.  Ed.  508,  8  Sup.  Ct.  564. 

''^A.tlantic     C.     L.     R.     Co.     v.  1  I.  C.  R.  804. 
Wharton,  207  U.  S.  328,  52  L.  Ed. 


§  22.]  Affecting  Interstate  Commerce.  39 

state's  police  power. ^"^  In  sustaining  the  above  principle,  Air. 
Justice  Field  said : 

"It  is  conceded  that  the  power  of  Congress  to  regulate  inter- 
state commerce  is  plenary;  that,  as  incident  to  it,  Congress  may 
legislate  as  to  the  qualifications,  duties  and  liabilities  of  em- 
ployees and  others  on  railway  trains  engaged  in  that  commerce ; 
and  that  such  legislation  will  supersede  any  state  action  on  the 
subject.  But  until  such  legislation  is  had,  it  is  clearly  within 
the  competency  of  the  state  to  provide  against  accidents  on 
trains  whilst  within  their  limits.  Indeed,  it  is  a  principle  fully 
recognized  by  decisions  of  state  and  federal  courts,  that  wher- 
ever there  is  any  business  in  which,  either  from  the  products 
created  or  the  instrumentalities  used,  there  is  danger  to  life  or 
property,  it  is  not  only  within  the  power  of  the  states,  but  it  is 
among  their  plain  duties,  to  make  provision  against  accidents 
likely  to  follow  in  such  business,  so  that  the  dangers  attending  it 
may  be  guarded  against  so  far  as  is  practicable." 

Under  this  principle,  a  state  law  requiring  a  certain  number 
of  employees  to  a  train,  known  as  the  Full  Crew  Law,  is  valid. ^''^ 
A  law  requiring  an  electric  head  light  on  engines  has  been  held 
valid,  although  it  is  near  the  margin  of  the  power  of  a  state  if  it 
does  not  offend  against  the  commerce  clause  of  the  federal 
Constitution. 1''^ 

If  a  state  can  not  regulate  the  employees  of  railroads  in  so 
far  as  they  are  engaged  in  intrastate  commerce,  they  can  not  be 
regulated. 1*^"* 

Congress  having  in  1908  passed  a  second  Employees'  Liability 

'"  Nashville,     C.     &    St.    L.     R.  Smith  v.  Texas,  233  U.  S.  630,  58 

Co.  V.  Alabama,   128  U.   S.  96,   32  L.   Ed.   1129,  34  Sup.   Ct.   681;   re- 

L.  Ed.  352,  9  Sup.  Ct.  28.  versing  same  styled  case,  63  Tex. 

""Chicago,   R.   I.   &  P.   Ry.   Co.  Cr.  App.  183,  146  S.  W.  900. 

V.   Arkansas,   86  Ark.  412,   111   S.  ""  Atlantic  C.  L.  R.  Co.  v.  State 

W.  456;  for  note  see  32  L.  R.  A.  of  Georgia,  135   Ga.  545,  69  S.   E. 

(N.   S.)    22;   Chicago,   R.   I.    &  P.  725,  32  L.  R.  A.  (N.  S.)  20;  same 

Ry.    Co.    V.   Arkansas,    219    U.    S.  styled   case,  234  U.  S.  280,  58  L. 

453,    55    L.    Ed.    290.    31    Sup.    Ct.  Ed.    312,    34    Sup.   Ct.    829. 

275.      But    a    law    of    Texas    pro-  "*  Howard  v.  Illinois  C.  R.  Co., 

hibiting  anyone  from  acting  as  a  207   U.   S.   463,   52   L.   Ed.   297,   28 

conductor     on     a     railway     train  Sup.  Ct.  141.     See  a  discussion  of 

without     previous    service     as    a  Smith     v.     Alabama    and    similar 

brakeman   is   void   as   a   denial    of  cases  in  dissenting  opinion  of  Mr. 

the    equal    protection    of   the   law.  Justice   Moody. 


40  State  Regulation  [§  23. 

Act,  which  is  vaHd,  the  passage  of  that  act  removed  that  subject 
from  the  sphere  of  state  action. ^*^^  There  being  nothing  in  the 
federal  laws  to  conflict  therewith,  it  is  within  the  power  of  a 
state  legislature  to  rec|uire  carriers  to  pay  employees  wages  semi- 
monthly, although  the  carriers  and  employees  are  engaged  in 
interstate  commerce. ^^•^' 

Congress  having  acted  upon  the  subject  of  the  hours  of  labor 
of  interstate  railway  employees, ^"^"^  the  subject  is  beyond  state 
control,  and  a  state  law  fixing  such  hours  for  a  shorter  period 
than  those  fixed  by  the  federal  statute,  is  void.^-'- 

§  23.  Blowing  Whistle  and  Checking  Speed  at  Cross- 
ings.— In  the  absence  of  congressional  action  upon  the  same 
subject  matter,  states  may  regulate  "the  manner  in  which 
interstate  trains  shall  approach  dangerous  crossings,  the 
signals  which  shall  be  given,  and  the  control  of  the  train  which 
shall  be  required  under  such  circumstances.  Crossings  may  be 
so  situated  in  reference  to  cuts  or  curves  as  to  render  them 
highly  dangerous  to  those  using  the  public  highways.  They  may 
be  in  or  near  towns  or  cities,  so  that  to  approach  them  at  a  high 
rate  of  speed  would  be  attended  with  great  danger  to  life  or 
limb.  On  the  other  hand,  highway  crossings  may  be  so  numer- 
ous and  so  near  together  that  to  recjuire  interstate  trains  to  slacken 
speed  indiscriminately  at  all  such  crossings  would  be  practically 
destructive  of  the  successful  operation  of  such  passenger  trains. 
Statutes  which  require  the  speed  of  such  trains  to  be  checked  at 
all  crossings  so  situated  might  not  only  be  a  regulation,  but  also 
a  direct  burden  upon  interstate  commerce,  and  therefore  beyond 
the  power  of  the  state  to  enact." 

This   quotation   clearly   and   authoritatively   gives   the  general 

"°For  a  discussion  of  this  Act  Y.   525,   92   N.    E.   1084,   136   App. 

see  pos},  Sec.  332;  see  also  North-  Div.   902,   120  N.  Y.   Sup.   1023. 
ern  Pac.  Ry.  Co.  v.  Washington,  "'  State  v.  Missouri  Pac.  R.  Co., 

222  U.    S.   370,    56   L.    Ed.   237,    32  242    Mo.    339,    147    S.    W.    118. 
Sup.   Ct.   160;   North   Carolina   R.  '"'Appendix  F,  Sec.  331,  post. 

R.  Co.  V.  Zachary.  232  U.  S.  248,  '"'  Erie  R.  Co.  v.  New  York,  233 

58    L.    Ed.    591,    34    Sup.    Ct.    305;  U.  S.  671,  58  L.  Ed.  1149,  34  Sup. 

reversing    same    styled    case.    156  Ct.  756,  reversing,  Erie  R.  Co.  v. 

N.    C.   496,   72   S.    E.    858;    Erie   R.  New  York,   198   N.  Y.   369,   91   N. 

R.  Co.  V.  Williams,  233  U.  S.  685,  E.   849,   29   L.    R.   A.    (N.    S.)    240, 

58   L.   Ed.   1155.   34   Sup.    Ct.   761;  139    Am.    St.    Rep.    829,    19    Ann. 

affirming  same  styled  case  199  N.  Cas.  811. 


§  24.]  Affecting  Interstate  Commerce.  41 

rule,  the  application  of  which  to  a  Georgia  statute  requiring  an 
interstate  carrier  to  check  its  trains  at  public  crossings  resulted 
in  a  holding  that  the  statute  was  valid. ^"^  Such  holding,  how- 
ever, must  be  limited  to  the  facts  of  that  case  and  the  decision 
is  not  authority  for  the  principle  that  the  power  of  the  state  in 
this  respect  is  unlimited. 

This  principle  sustains  those  state  statutes:  requiring  cattle 
guards  under  reasonable  rules  and  regulations. 

§  24.  Furnishing'  Cars  for  the  Receipt  and  Delivery  of 
Shipments. — Prior  to  the  passage  of  the  Hepburn  Act,^^^'  the 
Texas  legislature  passed  a  law  prescribing  rules  under  which  car- 
riers should  furnish  cars  to  shippers.  A  penalty  was  fixed  as 
follows : 

"When  cars  are  applied  for  under  the  provisions  of  this  chap- 
ter, if  they  are  not  furnished  the  railway  company  so  failing  to 
furnish  them  shall  forfeit  to  the  party  or  parties  so  applying 
for  them  the  sum  of  S25  per  day  for  each  car  failed  to  be  fur- 
nished, to  be  recovered  in  any  court  of  competent  jurisdiction, 
and  all  actual  damages  such  applicant  may  sustain." 

The  only  excuse  which  the  carrier  could  give  to  escape  the 
penalty  was  "strikes  or  other  public  calamity."  The  Texas  Court 
of  Civil  Appeals  having  sustained  a  judgment  for  a  penalty  under 
the  statute, 1^^  the  cause  was  appealed  to  the  Supreme  Court, 
and  that  court  determined  the  question  of  whether  the  regula- 
tion was  reasonable,  as  it  had  a  right  to  do,  the  regulation  af- 
fecting interstate  commerce.  The  Texas  statute  was  held  void 
as  being  an  unreasonable  regulation  of  interstate  commerce. 
Mr.  Justice  Brown,  delivering  the  opinion  said:^^- 

" While  there  is  much  to  be  said  in  favor  of  laws  requiring 
railroads  to  furnish  adequate  facilities  for  the  transportation  of 
both  freight  and  passengers,  and  to  regulate  the  general  subject 
of  speed,  length,  and  frequency  of  stops,  for  the  heating,  light- 
ing, and  ventilation  of  passenger  cars,  the  furnishing  of  food 
and  water  to  cattle  and  other  live  stock,  we  think  an  absolute  re- 

"°So.   Ry.   Co.   V.   King,   217  U.  "=  Houston    &   T.    C.    R.    Co.   v. 

S.  524,  533,  534,  54  L.  Ed.  SfiS,  30  Mayes,   201   U.    S.   321,    50   L.    Ed. 

Sup.    Ct.    594.  772,    26    Sup.    Ct.    491.      See    also, 

^"' Post,   Sees.   335   to   338.  So.    Ry.    Co.    v.    Melton,    133    Ga. 

'"Houston    &    T.    C.    R.    Co.    v.  277,    G5    S.    E.    665. 
Mayes,  36  Tex.  Civ.  .A.pp.  606,  600, 
83   S.  W.  53,  55. 


42  State  Regulation  [§  25. 

quirement  that  a  railroad  shall  furnish  a  certain  number  of  cars 
at  a  specified  day,  regardless  of  every  other  consideration  except 
strikes  and  other  public  calamities,  transcends  the  police  power  of 
the  state,  and  amounts  to  a  burden  upon  interstate  commerce.  It 
makes  no  exception  in  cases  of  a  sudden  congestion  of  traffic, 
an  actual  inability  to  furnish  cars  by  reason  of  their  temporary 
and  unavoidable  detention  in  other  states,  or  in  other  places 
within  the  same  state.  It  makes  no  allowance  for  interference 
of  traffic  occasioned  by  wrecks  or  other  accidents  upon  the  same 
or  other  roads,  involving  a  detention  of  traffic,  the  breaking  of 
bridges,  accidental  fires,  washouts,  or  other  unavoidable  conse- 
quences of  heavy  weather." 

Had  the  regulation  allowed  all  proper  excuses  for  failing  to 
furnish  the  cars,  it  would  have  teen  reasonable  and,  therefore 
valid.     In  concluding  the  opinion,  Mr.  Justice  Brown  said : 

"Although  it  may  be  admitted  that  the  statute  is  not  far  from 
the  line  of  proper  police  regulation,  we  think  that  sufficient  al- 
lowance is  not  made  for  the  practical  difficulties  in  the  admin- 
istration of  the  law,  and  that,  as  applied  to  interstate  commerce, 
it  transcends  the  legitimate  powers  of  the  legislature." 

The  Texas  courts  have  held  that  the  law  discussed  above  was 
valid  as  to  intrastate  commerce. ^^^ 

§  25.  Same  Subject.  Rule  Since  Hepburn  Act. — In  South- 
ern Railway  Co.  ?'.  Reid,^^-*  a  statute  of  the  State  of  North 
Carolina  requiring  that  freight  be  received,  when  tendered,  and 
forwarded  by  a  route  selected  by  the  shipper  under  penalty  of 
$50  a  day  and  actual  damages,  was  held  invalid  when  applied  to 
an  interstate  shipment.  This  decision  was  placed  upon  the  ground 
that  there  was  a  conflict  between  the  federal  and  the  state  statutes, 
although  the  court  cited  the  Mayes  case,  supra,  and  pointed  out 
that  the  state  statute  and  the  state  decisions  relating  thereto  left 
no  doubt  as  to  what  excuses  or  defenses  might  be  ofifered  for  a 
failure  to  comply  with  the  law.  In  the  course  of  the  opinion.  Mr. 
Justice  ]\IcKenna  took  occasion  to  describe  the  wide  scope  of  the 
Acts  to  Regulate  Commerce.    He  said  (p.  440)  : 

"'Allen  V.  Tex.   &  P.   Ry.    Co.,  Texas  &  P.  Ry.   Co.  v.  Andrews, 

100   Tex.    825,    101    S.   W.    792.    re-  54  Tex.  Civ.  App.  418,  118  S.  W. 

versing    same    st3^Ied    case,    Tex.  1101.    55    Tex.    Civ.    App.    302. 

Civ.   App..   98    S.'W.   450;    Texas  "*  So.    Ry.   Co.  v.   Reid,   222  U. 

&   P.   Ry.   Co.  V.  Taylor;  42  Tex.  S.  424.  56  L.  Ed.  257,  32  Sup.   Ct. 

Civ.    App.    331,    118    S.  W.   1097;  140. 


§  25.]  Affecting  Interstate  Commerce.  43 

"There  is  scarcely  a  detail  of  regulation  which  is  omitted  to 
secure  the  purpose  to  which  the  Interstate  Commerce  Act  is  aimed. 
It  is  true  that  words  directly  inhibitive  of  the  exercise  of  state, 
authority  are  not  employed,  but  the  subject  is  taken  possession 
of." 

In  the  Hardwick  Elevator  case  ^^^  the  Chief  Justice,  after 
referring  to  Sections  1,  8,  9  and  10  ^^^  of  the  Act  to  Regulate 
Commerce  as  amended  by  the  Hepburn  Act,  said : 

"As  legislation  concerning  the  delivery  of  cars  for  the  carriage 
of  interstate  traffic  was  clearly  a  matter  of  interstate  commerce 
regulation,  even  if  such  subject  was  embraced  within  that  class 
of  powers  concerning  which  the  state  had  a  right  to  exert  its  au- 
thority in  the  absence  of  legislation  by  Congress,  it  must  follow 
in  consequence  of  the  action  of  Congress  to  which  we  have  re- 
ferred that  the  power  of  the  state  over  the  subject-matter  ceased 
to  exist  from  the  moment  that  Congress  exerted  its  paramount 
and  all  embracing  authority  over  the  subject.  We  say  this  be- 
cause the  elementary  and  long  settled  doctrine  is  that  there  can 
be  no  divided  authority  over  interstate  commerce  and  that  the 
regulations  of  Congress  on  that  subject  are  supreme." 

The  application  of  this  principle  to  the  Minnesota  Reciprocal 
Demurrage  Law  there  involved  resulted  in  holding  that  law  void. 
The  state  court  held  that  the  law  applied  to  both  interstate  and  in- 
trastate commerce  and  that  the  regulation  was  valid  and  within 
the  principle  that  Congress  not  having  acted,  the  state  might. ^^''' 
The  principle  was  not  denied  by  the  Supreme  Court,  but  it  was 
held  that  Congress  had  acted,  and  that  as  Congress  had  covered 
the  whole  field  the  state  was  thereby  rendered  "impotent  to  deal 
with  a  subject  over  which  it  had  no  inherent  but  only  permissive 
power." 

"'Chicago,  R.   I.   &  P.   Ry.   Co.  Peak.    Peacock   &   Kerr  v.    Cent. 

V.     Hardwick     Farmers     Elevator  R.    Co.    of   N.   J.,    18    I.    C.    C.   25, 

Co.,  226  U.  S.  426,  57  L.   Ed.  284,  35;    Re    demurrage    Investigation, 

33    Sup.    Ct.    174;    Sec.    22,    supra.  19     I.     C.     C.     496,     498;     Lehigh 

Sec.  306  first  edition  was  cited  in  Valley    R.    Co.    v.    United    States, 

the  argument  in  this  case,  p.  431.  188   Fed.   879,   887. 

''"Post,    §§    335,    338,    382,    383.  '"Hardwick     Elevator     Co.     v. 

For      regulation      of      demurrage  Chicago,   R.   I.   &  P.   R.   Co.,   110 

charges    by   the    Int.    Com.    Com.  Minn.  25,  124  N.  W.  819,  9  Ann. 

see:   Wilson    Prod.    Co.   v.    Penn.  Cas.  1088. 
R.    Co.,    16    I.    C.    C.    116,    121: 


44 


State  Regulation 


[§  25. 


Following  the  Elevator  case,  the  Supreme  Court  has  held 
void  a  Mississippi  regulation  concerning  the  "delivery  of  cars  at 
the  termination  of  interstate  commerce  transportation,"  ^^^  and 
an  Arkansas  statute  relating  to  reciprocal  demurrage. ^^^ 

The  states  may  not  regulate  rates  "on  that  part  of  interstate 
carriage  which  includes  the  actual  placing  of  the  shipment  into 
vessels  ready  to  be  carried  beyond  the  state."  ^^o 

A  state  may  regulate  the  parking  of  taxicabs  and  the  rate  of 
charges  within  the  state,  although  at  times  such  vehicles  may  be 
used  in  interstate  commerce. ^^^ 

There  is  nothing  in  the  federal  law  which  would  make  invalid 
a  state  law  which  permits  the  recovery  of  damages  for  failure 
to  deliver  or  transport  interstate  freight  in  a  reasonable  time, 
such  law  being  merely  a  statement  of  the  common  law  on  the 
subject  and  being  in  no  way  in  conflict  with  any  provision  of 
the  Act  to  regulate  commerce. ^^- 


"' Yazoo  &  M.  V.  R.  Co.  v. 
Greenwood  Grocery  Co.,  227  U. 
S.  1.  57  L.  Ed.  389,  33  Sup.  Ct. 
213,  reversing  same  styled  case, 
96  Miss.  403,  51  So.  450. 

"'St.  Louis,  I.  M.  &  S.  Ry.  v. 
Edwards,  2?7  U.  S.  265,  57  L.  Ed. 
506,  33  Sup.  Ct.  26;  see  also  Ark- 
ansas statute  as  to  distribution  of 
cars,  St.  Louis  Ry.  Co.  v.  Ark- 
ansas, 217  U.  S.  136,  54  L.  Ed. 
698,    30    Sup.    Ct.    476. 

""  Oregon  R.  R.  Com.  v.  Worth- 
ington,  225  U.  S.  101,  56  L.  Ed. 
1087,  32  Sup.  Ct.  653.  Requiring 
double  decked  cars  on  interstate 
shipments  is  an  illegal  regulation 
by  a  state;  Stanley  v.  Wabasii, 
St.  L.  &  P.  R.  Co.,  100  Mo.  435, 
13  S.  W.  709.  8  L.  R.  A.  549, 
where  is  found  numerous  cita- 
tions  of  authorities. 

"'Yellow  Taxicab  Co.  v.  Gay- 
nor  (Taxicab  cases),  82  Alisc.  R. 
94,   143   N.  Y.   Supp.   279. 

'"  Western  &  A.  R.  Co.  v.  Sum- 
merour,  139  Ga.  545,  77  S.  E.  802; 
Oliver  V.   Chicago,  R.  L  &  P.  R. 


Co.,  89  Ark.  466,  117  S.  W.  238, 
holding  law  valid  as  to  intrastate 
and  invalid  as  to  interstate  com- 
merce; Yazoo  &  M.  V.  R.  Co.  v. 
Keystone  Lumber  Co..  90  Miss. 
391,  43  So.  605,  no  interstate  com- 
merce was  here  moved;  Zetter- 
berg  V.  Great  N.  Ry.  Co.,  117 
Minn.  495,  136  N.  W.  295,  de- 
cided before  Hardwick  Elevator 
case,  note,  supra.  Statutes  pro- 
viding penalties  for  unreasonable 
delay  of  intrastate  shipments 
valid,  Lexington  Grocery  Co.  v. 
So.  Ry.  Co.,  136  N.  C.  396,  48  S. 
E.  801;  Stone  v.  Atlantic  C.  L. 
Ry.  Co..  144  N.  C.  220,  56  S.  E. 
932,  and  cases  cited;  Rollins  v. 
Seaboard  A.  L.  Ry.,  146  N.  C.  218, 
59  S.  E.  671;  but  carrier  relieved 
if  conditions  causing  delay  re- 
result  from  causes  for  which  it 
is  not  responsible.  Garrison  v.  So. 
Ry.  Co.,  150  N.  C.  575,  64  S.  E. 
578.  Discrimination  in  the  order 
of  shipments  prohibited:  Hill  & 
Morris  v.  St.  L.  S.  W.  Ry.  Co. 
of  Texas,  75  S.  W.  874,   reversed 


§  26.]  Affecting  Inthrstate  Commerce.  45 

A  municipal  ordinance  compelling  an  express  company  to  give 
a  bond  conditioned  "for  the  safe  and  prompt  delivery  of  all  bag- 
gage," etc.,  intrusted  to  it  or  its  agents,  in  so  far  as  it  applied  to 
interstate  commerce  was  held  to  be  void,  because  as  said  in  the 
opinion  of  the  court :  "Congress  has  exercised  its  authority  and 
has  provided  its  own  scheme  of  regulation."  ^^^ 

A  state  statute  which  merely  required  a  railroad  company  to 
furnish  cars  within  a  reasonable  time  after  demand  and  which, 
as  construed,  left  the  question  of  what  was  a  reasonable  time 
to  be  determined  in  view  of  the  requirements  of  interstate  com- 
merce, is  not  a  direct  burden  thereof  and  is  valid.  This  statute 
is  nothing  but  a  statement  of  the  carrier's  common  law  duty  to 
furnish  the  necessary  equipment  enabling  it  to  perform  its  under- 
taking of  public  transportation. ^24 

§  26.  Same  Subject.  Rule  Established. — Where  a  state 
statute  or  regulation  conflicts  with  a  federal  regulation  affecting 
interstate  commerce,  the  state  law  is  void.  In  the  absence  of  a 
federal  statute  the  states  may  not  make  regulations  directly  bur- 
dening interstate  commerce.  Congress  has  taken  possession  of 
the  field  of  regulation  as  to  the  receipt  and  delivery  of  freight 
moving  in  interstate  commerce  and  no  direct  control  with  ref- 
erence thereto  can  be  exercised  by  state  authority.  Any  regula- 
tion by  a  state  of  an  interstate  carrier  affects  to  some  extent  in- 
terstate commerce,  and  it  is  clearly  intimated  by  Mr.  Justice 
Hughes  in  the  Minnesota  Rate  Cases,  supra,  that  Congress  might 
so  extend  the  scope  of  federal  regulation  as  to  exclude  even  this 
remote  effect  of  state  legislation.  But  in  the  same  cases  it  was 
shown  that  Congress  has  not  as  yet  exercised  the  full  power  that 
it  might  under  the  Constitution  of  the  United  States  and  that  the 
proviso  exempting  intrastate  commerce  from  the  Acts  to  Regulate 
Commerce  leaves  a  field  for  state  action. ^-"^    The  Commerce  Acts 

on    the    construction    of   the    stat-  W.  1045,  26  L.  R.  A.  (N.  S.)   1028, 

ute,  St.  L.  S.  W.  Ry.  Co.  of  Texas  19   Ann.   Cas.   170. 

V.  Hill  &  Morris,  97  Tex.  506,  80  "'  Barrett  v.  New  York,  232  U, 

S.    W.    368;    Tex.    C.    R.    Co.    v.  S.   14,   58  L.   Ed.  483,   34   Sup.   Ct. 

Hannay-Frerichs     &     Co.,     Tex.  203.    reversing   same   styled    case, 

Civ.    App.,    130    S.    W.    250.      De-  183    Fed.   793,    18'9   Fed.   268. 

lay    caused    by    not    shipping   on  '"^  111.    C.    R.    Co.    v.    Mulberry 

Sunday  no  ground  for  recovering  Hill    Coal   Co.,   238   U.   3-   275,   59 

penalty.    Cram   v.    Chicago,    B.    &  L.    Ed.   — ,   35    Sup.    Ct.    760. 

Q.    R.    Co.,    84    Neb.    607,    122    N.  ''"For     proviso,     see     Sec.     336, 

W.    31,    rehearing    denied    123    N.  post. 


46  State  Regulation  [§  26. 

amendatory  and  supplementary  are  not  so  inclusive  nor  so  ex- 
clusive as  are  the  laws  relating  to  the  rights  and  protection  of 
employees, 1-6  and  the  decision  under  the  Employees  Protective 
Acts  go  further  than  they  do  under  the  commerce  regulating 
acts.  The  decision  relating  to  furnishing  cars  and  holding  state 
statutes  on  the  subject  illegal  do  not  go  so  far  as  to  hold  that  a 
state  may  not  legislate  as  to  the  furnishing  and  the  delivery  of 
cars  used  in  the  shipment  of  freight  between  points  in  the  state. 
But,  while  there  is  left  to  the  states  a  power  of  regulation  as  to 
intrastate  transportation,  such  power  must  not  be  exercised  in 
a  way  to  burden  interstate  transportation. 

A  state  may  not  recj[uire  that  cars  be  furnished  for  intrastate 
commerce  when  the  recjuirement  would,  if  obeyed,  prevent  a 
carrier  from  furnishing  cars  for  interstate  commerce  in  like  pro- 
portion. The  state  regulation  must  not  discriminate  in  favor  of 
intrastate  commerce  or  against  interstate  commerce. 

These  principles  were  illustrated  by  the  decision  of  the  Su- 
preme Court  in  Hampton  v.  St.  Louis  I.  M.  &  S.  Ry.  Co.,^^?  where 
a  law  of  Arkansas  was  involved  requiring  an  interstate  carrier  to 
furnish  cars  on  demand,  the  section  of  the  law  making  the  re- 
quirement concluding  with  the  proviso : 

"Interstate  railroads  shall  furnish  cars  on  application  for  in- 
terstate shipments  the  same  in  all  respects  as  other  cars  to  be 
furnished  by  intrastate  railroads  under  the  provisions  of  this 
Act."' 

The  Supreme  Court  of  the  state  said :  ^-^ 

"The  failure  to  furnish  cars  under  the  terms  of  the  act  un- 
der investigation  will  establish  prima  facie  a  breach  of  duty  on 
the  part  of  the  railroad  companies.  This  will  not  preclude  their 
right  to  set  up  such  defense  as  will  excuse  or  justify  the  failure. 
That  a  fair  division  of  cars  with  interstate  business  made  it  im~ 
possible  to  answer  all  demands  made  for  cars  for  intrastate  busi- 
ness would  apparently  be  within  the  limit  of  proper  defenses  in 

"'  Employers'     Liability      Acts.  '="  Oliver  v.  Chicago',  R.  I.  &  P. 

Sec.    332,    post.  Ry.    Co..   89  Ark.   466,  470,    117   S. 

""Hampton   v.    St.    L.    I.   M.    &  W.     238.      See    also    Proctor    & 

S.   Ry.   Co.,  227  U.   S.   456,   57   L.  Gamble  v.  United  States,  225  U. 

Ed.    596,   33    Sup.    Ct.   263,    revers-  S.    282,    286,    56    L.    Ed.    1091,    32 

ing  St.  L.  I.  M.  &  S.  Ry.   Co.  v.  Sup.    Ct.   761. 
Hampton,   162   Fed.   693. 


§  27.]  Affecting  Interstate  Commerce.  47 

cases  of  demands  too  unusual  to  be  foreseen ;  and,  viewed  in  this 
way,  the  act  is  relieved  of  the  imputation  of  burdening  interstate 
commerce." 

Mr.  Justice  Lurton,  speaking  for  the  Supreme  Court  of  the 
United  States,  said  that  the  proviso  probably  meant  no  more  than 
that  there  should  be  "no  discrimination  against  demands  for  cars 
for  interstate  shipments,"  but  should  the  act  be  construed  "as  ex- 
tending the  act  so  as  to  regulate  the  furnishing  of  cars  for  in- 
terstate shipments,  it  would  be  invalid  by  reason  of  the  provisions 
of  the  Hepburn  Amendment  to  the  Act  to  Regulate  Commerce  of 
June  29,  1906." 

Construing  the  act  as  applying  only  to  intrastate  commerce  and 
as  permitting  the  defenses  stated  by  the  court  of  the  state,  the 
Supreme  Court  held  that,  under  the  pleadings,  the  agreement 
of  the  parties  and  the  ruling  of  the  court  below,  there  was  no 
showing  by  the  railroad  "that  in  the  operation  of  the  act  inter- 
state commerce  has  been  illegally  restrained  or  burdened,  or  that 
any  defense  which  it  may  have  for  the  neglect  to  comply  with 
the  provisions  of  the  act  as  to  furnishing  cars  has  been  or  will 
be  denied  by  virtue  of  its  obligation  as  an  interstate  railroad," 
and  that  the  act  should  not  have  been  enjoined. ^^^ 

Bills  of  lading  are  but  contracts  for  carriage,  and  when  they 
refer  to  interstate  transportation  the  federal  government  may 
make  regulations  with  reference  thereto,  and  when  the  transpor- 
tation is  intrastate  the  regulations  are  within  the  power  of  the 
states. ^^'^ 

§  27.  Requirements  as  to  Accounting  and  Reports. — The 
Interstate  Commerce  Commission  has  the  statutory  power  to  re- 
quire of  carriers  within  its  jurisdiction  to  keep  such  accounts  as 
may  be  prescribed  and  make  reports  to  the  Commission  upon 
certain  prescribed  forms. ^^^  These  statutory  requirements  are 
valid. 1-^2    As  all,  or  at  least  practically  all,  carriers  within  the  ju- 

'""See  Mulberry  Hill  Coal  Co.  L.  Ed.  296,  34  Sup.  Ct.  125;  In- 
case,   Sec.    2.5.    supra.  terstate    Com.    Com.   v.    Goodrich 

""Bills    of   Lading,   29    I.    C.  C.  Transit    Co.,    224    U.    S.    194,    211. 

417.  56    L.    Ed.    729,    32    Sup.    Ct.    436. 

"*  Sec.  433.  post.     Separation  of  See   the   Commission's   discussion 

Operating  Expenses,  30  I.   C.  C.  of   the    question    in    the    Twenty- 

676.  seventh  Annual  Report  of  the  In- 

"^  Kansas     C.     S.     Ry.     Co.  v.  terstate    Commerce    Commission, 

United    States,    231    U.    S.    423,  58  pp.   37,   38. 


48  State  Regulation  [§  27. 

risdiction  of  the  Interstate  Commerce  Commission  are  at  the 
same  time  engaged  in  hoth  interstate  and  intrastate  commerce, 
these  accounts  and  reports  must  of  necessity  include  matter  re- 
lating to  each  kind  of  commerce. 

It  is  frequently  necessary  to  consider  the  cost  of  both  inter- 
state and  intrastate  commerce  in  order  to  determine  what  is  a 
fair  rate  on  either. 

The  United  States  Supreme  Court  has  stated  the  reasons  for 
the  federal  statute  as  follows :  ^^^ 

"It  is  true  that  the  accounts  required  to  be  kept  are  general 
in  their  nature  and  embrace  business  other  than  such  as  is  nec- 
essary to  the  discharge  of  the  duties  required  in  carrying  pas- 
sengers and  freight  in  interstate  commerce  by  joint  arrangement 
between  the  railroad  and  the  water  carrier,  but  the  Commission 
is  charged  under  the  law  with  the  supervision  of  such  rates  as 
to  their  reasonableness  and  with  the  general  duty  of  making  re- 
ports to  Congress  which  might  require  a  knowledge  of  the  busi- 
ness of  the  carrier  beyond  that  which  is  strictly  of  the  character 
mentioned.  If  the  Commission  is  to  successfully  perform  its  du- 
ties in  respect  to  reasonable  rates,  undue  discriminations  and  fa- 
voritism, it  must  be  informed  as  to  the  business  of  the  carriers 
by  a  system  of  accounting  which  will  not  permit  the  possible  con- 
cealment of  forbidden  practices  in  accounts  which  it  is  not  per- 
mitted to  see  and  concerning  which  it  can  require  no  information. 
It  is  a  mistake  to  suppose  that  the  requiring  of  information  con- 
cerning the  business  methods  of  such  corporations,  as  shown  in 
their  accounts,  is  a  regulation  of  business  not  within  the  juris- 
diction of  the  Commission,  as  seems  to  be  argued  for  the  com- 
plainants. The  object  of  requiring  such  accounts  to  be  kept  in 
a  uniform  way  and  to  be  open  to  the  inspection  of  the  Commis- 
sion is  not  to  enable  it  to  regulate  the  affairs  of  the  corporations 
not  within  its  jurisdiction,  but  to  be  informed  concerning  the 
business  methods  of  the  corporations  subject  to  the  act  that  it 
may  property  regulate  such  matters  as  are  really  within  its  juris- 
diction. Further,  the  requiring  of  information  concerning  a  busi- 
ness is  not  regulation  of  that  business." 

Consistent  with  this  holding  is  the  decision  of  the  Court  of 
Civil  Appeals  of  Texas,  that  the  state  may  require  that  carriers 

^''  Interstate       Com.      Com.      z\      Goodrich  Transit   Co.,  supra. 


§  28.]  Affecting  Interstate  Commerce.  49 

as  to  intrastate  commerce  shall  keep  accounts  supplementary 
to  those  required  by  the  Interstate  Commerce  Commission. i^"* 

§  28.  Transmission  and  Delivery  of  Telegraph  and  Tele- 
phone Messages. — That  companies  engaged  in  the  telegraph  and 
telephone  business  are,  where  their  lines  extend  from  one  state 
to  another,  engaged  in  interstate  commerce  is  undisputed, ^"•'^  and 
Congress  has  legislated  expressly  including  such  within  the  Acts 
relating  to  commerce. ^^^ 

Prior  to  the  Act  of  1910  enlarging  the  scope  of  the  Act  to 
Regulate  Commerce,  state  statutes  regulating  the  delivery  of 
telegraph  messages  had  been  before  the  Supreme  Court.  The 
Indiana  statute  regulating  interstate  messages  sent  from  as  well 
as  into  the  state  was  held  void  because  the  state  law  could  "not 
extend  to  the  delivery  of  messages  in  other  states."  ^^~ 

The  Georgia  statute  providing  a  penalty  for  failure  to  receive 
and  deliver  in  the  state  telegraph  messages  was  held  valid  al- 
though applicable  to  interstate  messages. ^^^ 

A  Michigan  statute  which  prevented  the  telegraph  company 
from  contracting  to  relieve  itself  from  its  common  law  liability 
merely  gave  sanction  to  an  inherent  duty,  and  the  statute  was 
held  not  to  be  void  under  the  commerce  clause  of  the  Constitu- 
tion of  the  United  States. ^^^ 

A  state  law  relating  to  the  delivery  of  a  telegram  and  providing 
a  penalty  was  held  void  when  the  default  occurred  within  a  navy 

^^*  R.     R.     Com.     of     Texas     v.  Western  Union  Tel.  Co.  v.  James, 

Texas    &    P.    Ry.    Co.,    Tex.    Civ.  162  U.  S.  650,  40  L.   Ed.   1105,   10 

App.,    140    S.    W.    829.      To    the  vSup.  Ct.  934;  Western  Union  Tel. 

same    effect    see    R.    R.    Com.    of  Co.    v.    Commercial    Milling    Co., 

Miss.   V.    Gulf   &   S.    I.    R.    Co.,   78  218  U.  S.  403,  416,  54  L.  Ed.  1088, 

Miss.    750,   29    So.   789;    People   v.  31  Sup.   Ct.  59;   Postal  Tel. -Cable 

Joline,  65  Misc.  Rep.  394,  121  N.  Co.   v.    City   of   Mobile,    179    Fed. 

Y.   Supp.  857.     But  without  stat-  955,  and  cases  cited  at  page  960. 

utory      authority     a      commission  "'Act  1910,  Sees.  335,  340,  post; 

may  not   require   reports   by  tele-  Shoemaker    v.    Chesapeake    &    P. 

graph.     State  v.   Louisville   &  N.  Telephone  Co.,  20  I.  C.  C.  614. 

R.    Co.,    57    Fla.    526,    49    So.    39.  '"  Western    Union    Tel.    Co.    v. 

"^  Sec.   2,   note   2,  supra;   West-  Pendleton,  supra. 

ern  Union  Tel.  Co.  v.  Crovo,  220  ''"Western    Union  Tel.    Co.    v. 

U.   S.  364,  55  L.   Ed.  498,  31  Sup.  James,   supra. 

Ct.  399;  Western  Union  Tel.   Co.  ""Western    Union    Tel.    Co.    v. 

V.    Pendleton,    122   U.    S.    347,    30  Commercial   Milling   Co.,  supra. 
L.     Ed.     1187,    7     Sup.     Ct.     1126; 


50  State  Regulation  [§  29. 

yard/'*"  although  the  same  law  when  delivery  was  made  in  the 
territory  within  the  jurisdiction  of  the  state  was,  in  an  opinion  fol- 
lowing the  Georgia  and  Michigan  cases,  supra,  held  valid. ^^^ 

In  the  last  cited  case  the  court  said : 

"The  requirement  of  the  Mrginia  statute  as  here  applied  is  a 
valid  exercise  of  the  power  of  the  state  in  the  absence  of  legisla- 
tion by  Congress.  It  is  neither  a  regulation  of  nor  a  hindrance 
to  interstate  commerce,  but  is  in  aid  of  that  commerce." 

Similiar  language  calling  attention  to  the  "absence  of  legisla- 
tion by  Congress"  appears  in  the  cases  relating  to  the  Georgia 
and  Michigan  statutes.  As  the  Amendment  of  1910  says  that 
"telegraph,  telephone  and  cable  companies  fzcJiether  zvire  or  zvire- 
less)  engaged  in  sending  messages  from  one  state,  territor}%  or 
district  of  the  United  States  to  any  other  state,  territory,, 
or  district  of  the  United  States  or  to  any  foreign  country,  *  *  * 
shall  be  considered  and  held  to  be  common  carriers  within  the 
meaning  and  purpose  of  this  Act,"  there  is  legislation  by  Congress 
and  it  would  seem  that  the  decisions  relating  to  the  delivery  of 
interstate  freight,  sections  supra,  would  be  applicable  to.  inter- 
state messages,  and  that  state  laws  regulating  the  receipt  and  de- 
livery of  telegrams  and  telephone  messages  from  points  in  one 
state  to  i)oints  in  another  are  void. 

§  29.  Separate  Coach  Laws. — The  statute  of  Louisiana, 
which,  as  construed  by  the  courts  of  that  state,  compelled  com- 
mon carriers  to  receive,  in  apartments  set  aside  for  whites  only, 
negro  passengers,  was  held  by  the  Supreme  Court  to  be  invalid 
in  so  far  as  it  afifected  interstate  commerce.^'* ^  The  court  quoted 
from  the  opinion  of  Mr.  Justice  Field,  in  Welton  z'.  Missouri,^-* ^ 
to  the  efifect  that,  "inaction  (by  Congress)  *  *  *  is  equiva- 
lent to  a  declaration  that  interstate  commerce  shall  remain  free 
and  untrammeled,"  and  said : 

"Applying  that  principle  to  the  circumstances  of  this  case,  con- 
gressional inaction  left  Benson  at  liberty  to  adopt  such  reason- 
able rules  and  regulations  for  the  disposition  of  passengers  upon 
his  boat,  while  pursuing  her  voyage  within  Louisiana  or  with- 

"°  Western    Union    Tel.  Co.    v.           "'Hall    v.    DeCuir.    95    U.    S.    S 

Chiles,    214   U.    S.   274.    53  L.    Ed.        Otto  4S5,  24  L.  Ed.  547. 

994,  29  Sup.  Ct.  613.  "'Welton  v.  Missouri,  91  U.  S- 

-"  Western    Union    Tel.  Co.    v.       275.  282,  23  L.   Ed.  347,  350. 
Crovo,  supra. 


§  29.]  Affecting  Interstate  Commerce.  51 

out,  as  seemed  to  him  most  for  the  interest  of  all  concerned. 
The  statute  under  which  this  suit  is  brought,  as  construed  by  the 
state  court,  seeks  to  take  away  from  him  that  power  so  long  as 
he  is  within  Louisiana ;  and  while  recognizing  to  the  fullest  ex- 
tent the  principle  which  sustains  a  statute,  unless  its  unconstitu- 
tionality is  clearly  established,  we  think  this  statute,  to  the  ex- 
tent that  it  requires  those  engaged  in  the  transportation  of  pas- 
sengers among  the  states  to  carry  colored  passengers  in  Louisiana 
in  the  same  cabin  with  whites,  is  unconstitutional  and  void." 

While  this  decision  has  been  criticised  by  text  book  writers, 
it  is  sound  in  principle.  Carriers  may  not  unjustly  discriminate 
between  those  who  patronize  them,  but  they  are  free,  subject  to 
that  rule  and  the  further  one  that  charges  must  not  be  unreason- 
able, to  regulate  the  general  conduct  of  their  business.  It  can 
not  be  held  an  unjust  discrimination  to  require  whites  and  ne- 
groes to  ride  in  separate  compartments  of  a  public  conveyance, 
the  accommodations  being  equal.  For  the  negro  to  contend  that 
he  is  discriminated  against  in  favor  of  the  white  man  would  be  a 
contention  on  his  part  of  inferiority  to  the  white  man.  The  sepa- 
ration of  equals  discriminates  in  favor  of  neither.  Whatever  may 
be  said  as  to  the  actual  inferiority  of  the  negro,  he  is,  under  the 
law,  entitled  to  equal  rights  with  the  other  races. 

The  state  of  Mississippi  ha-s  a  law  requiring  railroads  carry- 
ing passengers  to  give  "separate  accommodations  to  white  and 
colored  races,"  by  furnishing  either  separate  coaches  or  separate 
compartments  in  the  same  coach.  The  law  was  construed  by  the 
state  courts  as  applying  only  to  commerce  within  the  state.  The 
Supreme  Court  of  the  United  States  held  the  law  valid. ^^'^  The 
decision  is  in  harmony  with  the  case  of  Hall  v.  DeCuir,  supra. 
In  the  Louisiana  case  the  regulation  affected  interstate  commerce 
and  was  invalid ;  in  the  Mississippi  case  the  regulation  did  not 
affect  interstate  commerce  and  was  valid.  In  the  Mississippi 
case  the  court  said : 

"The  reason  for  this  is  that  both  the  charge  and  the  actual 
transportation  in  such  cases  are  exclusively  confined  to  the  limits 

"*  Louisville,    N.    O.    &    T.    Ry.  styled  Louisville,  N.  O.  &  T.  Ry. 

Co.  V.  Mississippi,   133  U.   S.   587,  Co.   v.    Mississippi,    66    Miss.    662, 

33   L.   Ed.  784.   10   Sup.   Ct.   348.   2  5  L.  R.  A.  132,  6  So.  203,  2  I.   C. 

I.  C.  R.  801.    The  case  in  the  Su-  R.  615,   14  Am.  St.  Rep.  509. 

prcme    Court    of    Mississippi    was 


52  State  Regulation  [§  29. 

of  the  territory  of  the  state,  and  is  not  commerce  among  the 
states,  or  interstate  commerce,  but  is  exclusively  commerce  within 
the  state.  So  far,  therefore,  as  this  class  of  transportation,  as  an 
element  of  commerce,  is  affected  by  the  statute  under  considera- 
tion, it  is  not  subject  to  the  constitutional  provision  concerning' 
commerce  among  the  states.  It  has  often  been  held  in  this  court, 
and  there  can  be  no  doubt  about  it,  that  there  is  a  commerce 
wholly  within  the  state,  which  is  not  subject  to  the  constitutional 
provision,  and  the  distinction  between  commerce  among  the  states 
and  the  other  classes  of  commerce  between  citizens  of  a  single 
state,  and  conducted  within  its  limits  exclusively,  is  one  which 
has  been  fully  recognized  in  this  court,  although  it  may  not  be 
always  easy,  where  the  lines  of  these  classes  approach  each 
other,  to  distinguish  between  the  one  and  the  other." 

Louisiana  subsequently  passed  a  separate  coach  law,  which  the 
Supreme  Court  sustained,  as  it  afifected  only  commerce  in  that 
state.  1^5 

A  similar  law  in  Kentucky  was  also  sustained  by  the  Supreme 
Court.i« 

A  state  statute  requiring  the  separation  of  interstate  passengers 
would  be  void  as  an  attempt  to  regulate  interstate  commerce,  but, 
as  said  in  Hall  v.  DeCuir  supra.  Congress  having  failed  to  act, 
the  subject  of  the  separation  of  the  races  in  interstate  transpor- 
tation  is  unregulated   and   interstate  carriers   are   free  to  make 

* 
such  reasonable  rules  with  reference  thereto  as  they  see  fit ;  rea- 
sonable including  the  requirement  that  there  be  no  discrimina- 
tion in  the  accommodation. i^" 

A  statute  of  Oklahoma  applying  to  intrastate  travel,  in  so  far 
as  it  gave  equal,  although  separate  accommodation  to  passengers, 
members  of  the  white  and  negro  races,  was  held  valid  by  the 


"'Plessy    V.    Ferguson,    163    U.  C.   C.  471;   Cozart  v.  So.  Ry.   Co.. 

S.   537,  41   L.   Ed.   256,   16   Sup.   Ct.  16    I.    C.    C.   226. 
1138.  "'  Chiles    v.    Chesapeake    &    O. 

'"Chesapeake  &  O.  Ry.  Co.  v.  R.  Co.,  218  U.  S.  71,  54  L.  Ed. 
Kentucky,  179  U.  S.  388,  45  L.  936,  30  Sup.  Ct.  667;  Hall  v.  De- 
Ed.  244,  21  Sup.  Ct.  101.  See  also  Cuir,  supra,  is  cited  in  Simpson, 
Edwards  v.  N.  C.  &  St.  L.  Ry.  et  al,  R.  R.  Com.  of  Minnesota 
Co.,  12  I.  C.  C.  247;  Gaines  v.  z'.  Shepard,  230  U.  S.  352,  432,  433, 
Seaboard    A.    L.    Ry.    Co.,    16    I.  57  L.  Ed.  1511,  33  Sup.  Ct.  729. 


§  30.]  Affecting  Interstate  Commerce.  53 

Supreme  Court,  aud  iu  so  far  as  it  provided  accommodations  for 
whites  not  accorded  to  negroes,  it  was  held  to  be  invalid.^"*  ^ 

§  30.  Posting  Time  of  Trains. — A  statute  of  the  state  of 
Indiana  requiring  all  railroads  to  "cause  to  be  placed  in  a  con- 
spicuous place  in  each  passenger  depot  of  such  company  located 
at  any  station  in  this  state  at  which  there  is  a  telegraph  office,  a 
blackboard  at  least  three  feet  long  and  two  feet  wide,  upon 
which  such  company  or  person  shall  cause  to  be  written,  at  least 
twenty  minutes  before  the  schedule  time  for  the  arrival  of  each 
passenger  train  stopping  upon  such  route  at  such  station,  the 
fact  whether  such  train  is  on  schedule  time  or  not,  and  if  late, 
how  much,"  and  providing  a  penalty  for  violating  the  regulation, 
is  within  the  legislative  power.  It  is  true  that  the  regulation  may 
apply  to  the  time  of  an  interstate  train,  but  the  matter  is  one  of 
local  concern,  one  upon  which  Congress  has  not  acted,  and  one 
which  does  not  directly  affect  interstate  commerce. ^^^  If,  how- 
ever, the  regulation  is  unreasonable,  or  is  made  by  a  commission 
without  a  finding  of  facts  or  evidence  showing  the  relation  be- 
tween the  receipts  and  the  expense,  it  is  void.^^*^ 

§  31.  Laws  to  Promote  the  Security  and  Comfort  of  Pas- 
sengers.— States  may  protect  the  personal  security  of  those  who 
are  passengers  on  cars  used  within  their  limits.  Under  this  prin- 
ciple, a  law  of  New  York  prescribing  how  passenger  cars  should 
be  heated,  was,  in  the  absence  of  national  regulation  on  the  sub- 
ject, valid.  This  was  true,  although  the  regulation  incidentally 
affected  interstate  commerce. ^''^ 

The  statute  requiring  passenger  cars  to  be  heated,  supra,  was 
relied  upon  to  sustain  the  Georgia  statute  requiring  engines  to  be 
equipped  with   electric   head  lights.      Since   the   Supreme   Court 

^«  McCabe  v.  A.  T.  &  S.  F.  Ry.  ^"  Kansas     C.     S.     Ry.     Co.     v. 

Co.,  235  U.  S.  151,  59  L.  Ed.         ,  State.  27  Okla.  806.  117  Pac.  207; 

35  Sup.  Ct.  69.  St.  Louis  &  S.  F.  R.  Co.  v.  New- 

"°  State  V.  Indiana  &  I.   S.   Ry.  ell.  25  Okla.  502,  106  Pac.  818. 

Co.,  133  Ind.  69,  32  N.   E.  817,   18  ''"New    York,    N.    H.    &    H.    R. 

L.  R.  A.   502;   State  v.  Cleveland,  Co.  v.  New  York,  165  U.   S.   628, 

C.    C.    &   St.   L.   Ry.   Co.,    157    Ind.  41    L.    Ed.    853.    17    Sup.    Ct.    418. 

288,  61  N.  E.  669.     Posting  a  tariff  In    a    note    to    the    decision    will 

of    rates    would    be    governed    ]jy  be    found    cited    a    large    number 

the    same    principles,    Johnson    v.  of    cases    sustaining    the    general 

Seaboard  A.  L.  Ry.  Co.,  78  S.  C.  principle    involved    in    the    state- 

.':61,   52   S.   E.   644.  ment    of   law   in   this   section. 


54  State  Regulation  [§  31. 

sustained  the  New  York  law,  supra,  Congress  has  passed  several 
statutes  relating  to  safety  appliances,  and  even  though  after  the 
passage  of  these  statutes  the  heating  law  might  be  sustained,  it 
would  seem  that  the  electric  headlight  law,  in  so  far  as  it  ap- 
plies to  a  locomotive  engaged  in  interstate  commerce,  would 
be  void.152 

This  contention  was  urged  before  the  Supreme  Court  of  the 
United  States ;  but  that  court  held  that  the  Georgia  statute  was 
valid.  In  the  course  of  the  opinion  reference  was  made  to  the 
different  Federal  Safety  Appliance  Acts,  and  it  was  stated  that 
none  of  these  acts  referred  to  headlights,  and  said  the  court, 
"The  intent  to  supersede  the  exercise  of  the  state's  police  power 
with  respect  to  this  subject,  can  not  be  inferred  from  the  restrict- 
ive action  which  thus  far  has  been  taken."  ^^^  This  appears  a 
somewhat  narrow  view.  Congress  has  prescribed  certain  regula- 
tions as  to  the  equipment  of  railway  locomotives  used  in  interstate 
transportation.  Presumably  such  regulations  are  all  that  in  the 
opinion  of  Congress  are  necessary.  The  fact  that  Congress  has 
not  prescribed  regulations  for  each  part  of  the  locomotive  does 
not  indicate  that  the  "possession  of  the  field"  has  not  been  taken. 
A  state  law  should  not  lightly  be  set  aside,  every  presumption 
should  be  indulged  in  favor  of  its  validity,  but  state  regulations 
of  the  same  instrumentality  of  commerce  that  has  been  reg- 
ulated by  Congress,  although  of  a  different  part  of  such  instru- 
mentality, does  invade  the  field  already  occupied  by  federal  reg- 
ulation, and  in  which,  as  has  so  frequently  been  said  by  the  Su- 
preme Court,  the  national  authority  is  paramount  and  indivisible. 
The  decision  of  the  Supreme  Court  holding  void  the  statute  of 
the  state  of  Indiana  requiring  grab-irons  and  hand-holds  on  cars, 
seems  to  accord  with  the  text.^-^"* 

§  32.  Laws  Limiting'  or  Enlarging  the  Common  Law  Lia- 
bility of  Carriers. — The  question  of  the  right  of  a  railroad  com- 

"=  Atlantic     C.     L.     R.     Co.     v.  '"Atlantic     C.     L.     R.     Co.     v. 

State,    135    Ga.   .545,    69    S.    E.    725,  Georgia,  234  U.  S.  2S0,  58  L.   Ed. 

32    L.    R.    A.     (N.    vS.)     20,    citing  1312,   34   vSup.    Ct.   829. 

People  V.  N.   Y.,   etc.,   R.   Co.,  55  "*  So  Ry.  Co.  v.  Railroad  Com. 

Hun.   409.    608    (8    N.   Y.    S.    673);  of  Ind.,  236  U.   S.  439.   59   L.    Ed. 

N.  Y.,  etc.,  R.  Co.  z:  New  York,  — ,   35   Sup.  Ct.  304. 
165  U.   S.   628,  41   L.   R.  A.   853,   17 
Sup.   Ct.   418.     See   Safety  Appli- 
ance  Laws.   Appendix,    B    et   seq. 


§  32.]  Affecting  Interstate  Commerce.  55 

pany  to  limit  by  contract  its  common  law  liability  as  a  carrier  is 
one  of  general  law  upon  which  the  Supreme  Court  of  the  United 
States  will  exercise  its  judgment.  It  is  none  the  less  within  the 
province  of  the  states  and  any  state  may  pass  laws  on  the  subject. 
Therefore,  as  to  transportation  within  a  state,  the  legislature  of 
that  state  may  provide  that  a  contract  of  a  common  carrier  by 
which  it  exempts  itself  from  its  common  law  liability  is  void.^^^ 

The  statute  of  Virginia  provides : 

"When  a  common  carrier  accepts  for  transportation  anything 
directed  to  a  point  of  destination  beyond  his  own  line  he  shall  be 
deemed  thereby  to  assume  an  obligation  for  its  safe  carriage  to 
such  point  of  destination,  unless,  at  the  time  of  such  acceptance, 
such  carrier  be  released  or  exempted  from  such  liability  by  con- 
tract in  writing  signed  by  the  owner  or  his  agent." 

Suit  was  brought  against  the  carrier  issuing  the  bill  of  lading 
to  recover  for  the  loss  of  goods  shipped  from  Virginia  to  Louis- 
iana. The  carrier  depended  on  a  clause  in  its  bill  of  lading,  not 
signed  by  the  shipper,  exempting  it  from  liability  for  loss  beyond 
its  own  line.  The  shipper  relied  on  the  statute,  which  statute  was 
sustained  by  the  Supreme  Court. ^^^  Section  twenty  of  the  act 
to  regulate  commerce,  it  will  be  remembered,  contains  a  clause 
similar  to  the  Virginia  law,  supra. 

A  law  of  Missouri  similar  to  the  Virginia  law  was  also  sus- 
tained by  the  Supreme  Court  of  the  United  States. ^■^''' 

The  refusal  of  a  state  court  to  hold  valid  a  provision  of  a  bill 
of  lading  limiting  the  carrier's  liability  to  a  stated  sum  does  not 
violate  any  of  the  provisions  of  the  interstate  commerce  act.^^* 

A  provision  of  the  law  of  Georgia,  applicable  both  to  interstate 
and  intrastate  commerce,  that  a  carrier,  in  order  to  exempt  itself 
from  liability  beyond  its  own  line,  should  inform  the  shipper, 
in  writing,  when,  where  and  how  and  by  which  carrier  the 
freight  was  lost  or  damaged  was  held  invalid  by  the  Supreme 
Court. ■••'"     The  Georgia  case  is  distinguished  from  the  Virginia 

"'Chicago,    M.    &    St.    P.    Ry.  "'Missouri,    K.    T.    Ry.    Co.    v. 

Co.  V.  Solan,  169  U.  S.  133,  42  L.  McCann,    174    U.     S.    580,    43    L. 

Ed.    688,    18    Sup.    Ct.    289.      See  Ed.    1093,   19   Sup.   Ct.   755. 

notes  L.  Ed.  cited.  "' Penn.  R.   Co.  v.  Hughes,  191 

'"Richmond    &    A.    R.    Co.    v.  U.  S.  477,  48  L.   Ed.  268,  24  Sup. 

Patterson,    169   U.    S.    311,    42    L.  Ct.  132. 
Ed.    759,    18    Sup.    Ct.    335. 


56  State  Regulation  [§  32. 

case,  note  ^''■-  supra,  although  the  A'irginia  case  required  the  car- 
rier to  show  that  the  loss  did  not  occur  on  its  own  line,  when 
the  shipper  had  signed  a  contract  which  limited  the  liability  of 
the  carrier  to  its  own  line.  It  would,  therefore,  seem  that  the 
Georgia  law  is  just  a  little  beyond  the  boundary  line  that  marks 
the  ditterence  between  a  reasonable  and  an  unreasonable  regula- 
tion.    In  considering  the  Mrginia  case  the  court  said : 

"These  views  dispose  of  the  substantial  questions  which  the 
case  presents,  for  the  contention  which  arises  on  the  concluding 
sentences  of  the  statute,  imposing  upon  a  carrier  a  duty  where 
the  loss  has  not  happened  on  the  carrier's  own  line  to  inform  the 
shipper  of  this  fact,  is  but  a  regulation  manifestly  within  the 
power  of  the  state  to  adopt." 

Subsequent  to  the  decision  of  the  Supreme  Court  of  the  United 
States,  the  Supreme  Court  of  Georgia  held  that  the  Georgia 
statute  applied  only  to  intrastate  commerce  and  so  limited  was 
vahd.160 

A  law  of  Kansas  requiring  that  weights  be  specified  in  bills 
of  lading  and  that  the  w'eight  so  specified  should  be  conclusive, 
was  held  not  to  violate  the  commerce  clause  of  the  Constitution 
of  the  United  States,  but  to  be  void  as  denying  due  process  of 
law.i*"'!  As  to  shipments  in  interstate  commerce,  such  law  would 
be  void  since  the  legislation  extending  the  acts  to  regulate  com- 
merce. 

While  prior  to  the  Hepburn  Act  a  legislative  prohibition  of 
any  contract  in  a  bill  of  lading  limiting  the  time  in  which  to  sue 
to  less  than  two  years  was  held  valid  as  to  an  interstate  ship- 
ment, such  state  law  it  is  believed  is  now  invalid  when  applied  to 
interstate  commerce. ^''^ 

'"'  Cent,      of      Ga.      R.      Co.      v.  Simonson,    64    Kan.    S02.    68    Pac. 

Murphey,    196    U.    S.    194.    49    L-  653.   57   L.   R.  A.   765.   citing  Gulf. 

Ed.   444,   25   Sup.   Ct.   218.   revers-  C.    &    S.    F.    Ry.    Co.    v.    Dvvyer, 

ing    same    case,    116    Ga.    863.    43  75  Tex.   572.   12   S.  W.   1001.  7  L- 

S.    E.   265,    60   L.    R.   A.   817.  R.   A.  478. 

"^So.  Ry.   Co.  V.  Ragsdale.   119  '"'Reeves  v.  Tex.  &  P.  R.  Co.. 

Ga.    773,    47    S.    E.    179;    Davis   v.  Tex.  Civ.     App.,     32    S.    W.    920; 

Seaboard  A.  L.  Ry.  Co..  136  Ga.  Gulf.     C.     &.    S.     F.     Ry.     Co.    r. 

278,  71  S.  E.  419:   Seaboard  A.  L.  Eddins.  7  Tex.   Civ.  App.   116.  26 

Ry.    Co.    T.    Davis.    139    Ga.    547,  S.  W.  161;  Missouri.  K.  &  T.  Ry. 

77    S.    E.    795.  Co.  V.  Withers.  16  Tex.  Civ.  App. 

"'  Missouri,  K.  &  T.  Ry.   Co.  r.  506.   40   S.   W.    1073. 


33. 


Affecting  Interstate  Commerce. 


57 


It  is  true  that  the  so-called  Carmack  Amendment  contained  in 
the  Hepburn  Act,  relates  to  limitations  of  liability  and  not  limi- 
tations as  to  time  in  which  to  sue,  but  the  subject  of  the  contract 
for  interstate  shipments  is  included  within  the  amendment,  and  it 
may  well  be  argued  that  now  Congress  has  taken  possession  of  the 
field.  The  question  has  not  been  determined,  but  it  would  seem 
that  an  "interstate  contract  of  shipment  *  *  *  jg  withdrawn 
from  the  field  of  state  law."  ^^^ 

§  33.  Same  Subject — Liability  to  Employees. — The  first 
Employers'  Liability  Act,  that  of  June  11,  1906,  chap.  3073,  34 
Stat.  L.  232,  was  declared  by  the  Supreme  Court  of  the  United 
States  to  be  unconstitutional,  because,  as  construed,  it  applied  not 
only  to  employees  of  carriers  engaged  in  interstate,  but  also  to 
employees  of  carriers  engaged  in  intrastate  commerce.  Whether 
the  act  violated  the  Fourteenth  Amendment  was  not  decided,  but 
reference  was  made  to  decisions  of  the  court  holding  valid  state 
laws  making  a  special  regulation  as  to  a  carrier's  liability  to  its 
employees. 

Later,  on  April  22nd,  1908,  the  present  Employers'  Liability 
Act  was  approved,  and  this  act  has  been  held  valid  by  the  Su- 
preme Court. 1^^ 


'^Missouri,  K.  &  T.  R.  Co.  v. 
Harriman,  227  U.  S.  657,  57  L. 
Ed.  690,  33  Sup.  Ct.  397;  Kansas 
C.  S.  R.  Co.  V.  Carl,  227  U.  S. 
639,  57  L.  Ed.  683,  33  Sup.  Ct. 
391;  Chicago, R.  I.  &  P.  R.  Co.  v. 
Cramer,  232  U.  S.  290,  58  L. 
Ed.  697,  34  Sup.  Ct.  383.  revers- 
ing same  styled  case,  153  Iowa 
603,  133  N.  W.  387.  See  Sees. 
34  and   35,  post. 

^"  Employers'  Liability  Cases, 
Howard  v.  Illinois  C.  R.  Co.,  207 
U.  S.  463,  52  L.  Ed.  297,  28  Sup. 
Ct.  141.  Missouri  P.  R.  Co.  v. 
Mackay,  127  U.  S.  205,  32  L.  Ed. 
107,  8  Sup.  Ct.  1161;  Minneapolis 
&  St.  L.  R.  Co.  V.  Herrick,  127 
U.  S.  210,  32  L.  Ed.  109,  8  Sup. 
Ct.  1176;  Chicago,  K.  &  W.  R. 
Co.  V.  Pontius,  157  U.  S.  209,  39 
L.    Ed.    675,    15    Sup.    Ct.    585.      In 


Missouri  P.  R.  Co.  v.  Castle,  224 
U.  S.  541,  56  L.  Ed.  875,  32  Sup. 
Ct.  606,  a  State  Employers'  Lia- 
bility Act  passed  prior  to  Act 
1908  was  held  valid.  See  also 
Tullis  V.  Lake  E.  R.  Co.,  175  U. 
S.  348,  44  L.  Ed.  192,  20  Sup. 
Ct.  136;  Louisville  &  N.  R.  Co. 
V.  Melton,  218  U.  S.  36,  54  L.  Ed. 
921,  30  Sup.  Ct.  676;  Chicago,  I. 
&  L.  Ry.  Co.  V.  Kackett,  228  U. 
S.  559,  57  L.  Ed.  966,  33  Sup.  Ct. 
581,  and  cases  cited;  Minnesota 
Rate  Cases,  230  U.  S.  352,  at  pp. 
408,  409,  57  L.  Ed.  1511,  33  Sup. 
Ct.  729.  Mondou  v.  New  York, 
N.  H.  &  H.  R.  Co.  (Second 
Employers'  Liability  Cases),  223 
U.  S.  1,  56  L  Ed.  327,  32  Sup  Ct. 
169,  38  L.  R.  A.  (N.  S.)  44.  Act, 
1906.  supra,  valid  prior  to  1908 
as     to     territories:     Gutierrez     v. 


58  State  Regulation  [§  34. 

In  the  labor  laws  of  the  United  States,  contained  in  the  twenty- 
second  annual  report  of  the  Commission  of  Labor,  will  be  found 
all  the  state  laws  similar  to  the  Federal  Employers'  Liability  Act 
up  to  the  time  that  report  was  prepared.  Since  then  other  states 
have  passed  laws  applying  to  intrastate  commerce  substantially 
the  same  as  that  contained  in  the  federal  act.  That  the  states 
may  do  this  is  clearly  shown  in  Howard  v.  Illinois  Central  R. 
Co.,  note  ^^*  supra.  That  these  state  laws  are  valid  can,  there- 
fore, be  safely  assumed.  It  is  always  a  question  of  fact,  in  each 
case,  as  to  whether  or  not  the  commerce  at  the  time  an  injury 
may  occur  is  within  the  one  or  the  other  law.  Questions  of  ju- 
risdiction will  also  be  determined  upon  the  facts  in  each  case.  It 
tends,  therefore,  to  harmony  that  the  states  are  adopting  the  fed- 
eral statute.  The  same  carrier  should  not,  in  performing  the 
same  kind  of  service,  be  subjected  to  conflicting  laws,  merely  be- 
cause in  one  case  the  injury  is  caused  by  a  car  or  train  engaged 
in  interstate  commerce,  while  in  the  other  such  car  or  train  is  en- 
gaged in  purely  state  commerce.  In  most  cases,  however,  it  will 
be  found  that  the  carrier  is  engaged  in  transporting  interstate 
commerce.  The  act  of  Congress  applies  only  to  common  carriers 
while  engaged  in  interstate  commerce  and  to  employees  while 
employed  by  such  carriers  in  such  commerce. ^^''' 

§  34.  Same  Subject — Liability  for  Loss  or  Damage  to 
Shipments. — The  carrier's  contract  to  transport  in  interstate 
commerce  is  subject  to  regulation  by  the  federal  Government 
but,  in  the  absence  of  Congressional  action,  may  be  regulated  by 
the  states. ^'^'^  Judge  Powell,  of  the  Court  of  Appeals  of  Georgia, 
in  an  opinion  quoted  by  the  Supreme  Court  of  the  L^nited  States, 
described  the  condition  in  apt  language,  as  follows :  ^^^ 

E!    Paso     N.     E.   R.    Co.,   215   U.  ""Appendix    K;    Sec.    332,    posl 

S.   87,  54   L.   Ed.   106,  30  Sup.   Ct.  discusses  the  scope  of  the  federal 

21.      State    law    regulating    hours  statute. 

of    labor    of    interstate    railroad  ^"^  Penn.  R.  Co.  v.  Hughes,  191 

employees  invalid.     Erie  R.  Co.  v.  U.   S.  477.  48  L.   Ed.  268.  24  Sup. 

New   York.   233   U.   S.   671,   58   L.  Ct.   132. 

Ed.    1149,    34    Sup.    Ct.    756,    but  '"  So.    Pac.   Co.  v.   Crenshaw,   5 

same    law    requiring    payment    of  Ga.   App.   675.   687.   63   S.    E.   865. 

wages     semi-monthly      is      valid:  quoted:  Adams  Ex.  Co.  v.  Cron- 

Erie   R.    Co.   v.   Williams,   233   U.  inger,    226   U.    S.    491,    505,    57    L. 

S.    685.    58    L.    Ed.    1155.    34    Sup.  Ed.  314.  33  Sup.  Ct.  148. 
Ct.    761. 


§  34.]  Affecting  Interstate;  Commerce.  59 

"Some  states  allowed  carriers  to  exempt  themselves  from  all 
or  a  part  of  the  common  law  liability,  by  rule,  regulation,  or  con- 
tract ;  others  did  not ;  the  federal  courts  sitting  in  the  various  states 
were  following  the  local  rule,  a  carrier  being  held  liable  in  one  court 
when  under  the  same  state  of  facts  he  would  be  exempt  from  lia- 
bility in  another;  hence  this  branch  of  interstate  commerce  was 
being  subjected  to  such  a  diversity  of  legislative  and  judicial 
holding  that  it  was  practically  impossible  for  a  shipper  engaged 
in  a  business  that  extended  beyond  the  confines  of  his  own  state, 
or  for  a  carrier  whose  lines  were  extensive,  to  know  without  con- 
siderable investigation  and  trouble,  and  even  then  oftentimes  with 
but  little  certainty,  what  would  be  the  carrier's  actual  responsibil- 
ity as  to  goods  delivered  to  it  for  transportation  from  one  state 
to  another." 

To  meet  this  situation  Congress  enacted  what  is  called  the 
Carmack  Amendment,^*' ^  which  superseded  all  the  regulations 
and  policies  of  the  states  in  so  far  as  they  related  to  interstate 
commerce.  There  is,  however,  a  transportation  which  applies 
between  points  both  within  a  state  and  which  can  be  reached 
without  going  out  of  the  state.  As  to  such  transportation  Con- 
gress has  not  assumed  to  act,  and  contracts  relating  thereto  are 
subject  to  state  laws  and  regulations. ^^^  Therefore,  states  may 
legislate  and  the  state  commissions  may  make  regulations  relat- 
ing to  a  carrier's  liability  on  a  contract  of  shipment  in  intrastate 
commerce. 

^•^  See  Amendment,  Sec.  439, /'o.y^  Supp.  311;  In  the  matter  of  Re- 
Prior  to  a  decision  by  the  Su-  leased  Rates,  13  I.  C.  C.  550,  552; 
preme  Court  the  state  courts  dis-  Watkins  on  Shippers  and  Car- 
agreed  as  to  the  construction  of  riers,  1st.  Ed.,  267,  Sec.  201;  Gal- 
this  amendment.  See  Post  v.  veston,  etc.,  R.  Co.  v.  Wallace, 
Atlantic  C.  L.  R.  Co.,  138  Ga.  223  U.  S.  481,  491-2,  56  L.  Ed.  516, 
763,  76  S.  E.  45.  citing  cases  as  33  Sup.  Ct.  205;  St.  Louis,  etc.,  R. 
follows:  "On  this  subject  there  Co.  v.  Grayson,  89  .'\rk.  154,  115 
are   two   lines   of   authority.      See  S.  W.  933. 

Adams    Ex.    Co.    v.    Mellichamp.  "°  Simpson,    et   al,    R.    R.    Com. 

138  Ga.  443,  75  S.  E.  596;  Hooker  of   Minnesota  v.   Shepard,   230  U. 

V.  Boston  &  M.  R.  Co.,  209  Mass.  S.    352,    57    L.    Ed.    1511,    33    Sup. 

598,   95   N.   E.   945,   23   Ann.    Cas.  Ct.  729;  see  also  Yazoo  &  M.  V. 

699,    and    note;    Travis    v.    Wells,  R.    Co.    v.   Jackson    Vinegar    Co., 

Fargo    &   Co.,   79   N.   J.   L.   83,   74  226  U.    S.    217,   57   L.    Ed.    193,   33 

Atl.  444;  Greenwald  v.  Weir,  130  Sup.   Ct.   40;  Johnson   v.   So.   Ry. 

N.    Y.    App.    Div.    696,    ns    N.    Y.  Co.,   69   S.   C.   322,  48   S.   E.  260. 


60 


State  Regulation 


[§  y^- 


The  Carmack  Amendment  being  a  valid  law  within  the  power 
of  Congress  to  enact,  the  states  can  no  longer  legislate  concern- 
ing the  liability  of  carriers  under  interstate  contracts  of  ship- 
ment. ^"^ 

§  35.  Penalties  for  Failure  to  Pay  Claims. — A  law  of 
South  Carolina  provided  that  should  a  carrier  fail,  within  a 
time  therein  stated,  to  pay  a  claim  for  loss  or  damage,  such  car- 
rier was  subject  to  a  penalty  of  fifty  dollars.  The  law  applied 
both  to  intrastate  and  interstate  commerce,  the  time  to  -settle 
being  forty  days  in  the  former  and  ninety  days  in  the  latter. 
In  a  case  in  the  Supreme  Court  of  the  United  States  involving 
an  intrastate  shipment  where  judgment  had  been  entered  for 
fifty  dollars  penalty  and  one  dollar  and  seventy-five  cents  dam- 
ages, the  law  was  sustained. I'^i  J\lr.  Justice  Brewer,  delivering 
the  opinion,  said : 

"Further,  the  matter  to  be  adjusted  is  one  peculiarly  within 
the  knowledge  of  the  carrier.  It  receives  the  goods  and  has 
them  in  its  custody  until  the  carriage  is  completed.  It  knows 
what  injury  was  done  during  the  shipment,  and  how  it  was  done. 
The  consignee  may  not  know  what  was  in  fact  delivered  at  the 
time  of  the  shipment,  and  the  shipper  may  not  know  what  was 
delivered  to  the  consignee  at  the  close  of  the  transportation.  The 
carrier  can  determine  the  amount  of  the  loss  more  accurately 


""Boston  &  M.  R.  Co.  v. 
Hooker,  233  U.  S.  97,  58  L.  Ed. 
808,  34  Sup.  Ct.  526,  reversing 
contra  styled  case,  209  Mass.  598, 
95  N.  E.  945.  Ann.  Cas.  1912B 
669;  Atchison  T.  &  S.  F.  R.  Co. 
V.  Robinson,  233  U.  S.  173,  58  L. 
Ed.  90,  34  Sup.  Ct.  556,  revers- 
ing same  styled  case,  36  Okla. 
435,  129  Pac.  20;  Charleston 
C.  R.  Co.  V.  Varnville  Furniture 
Co.,  237  U.  S.  597,  59  L.  Ed.  — , 
35  Sup.  Ct.  715,  reversing  same 
styled  case.  98  S.  C.  63,  79  S.  E. 
700;  American  Brake  Shoe  & 
Foundry  Co.  v.  Pere  Marquette 
R.    Co.,   223    Fed.    1018. 

"'Seaboard  A.  L.  Ry.  Co.  v. 
Seegers,  207  U.  S.  73,  52  L.  Ed. 
108,   28    Sup.    Ct.   28.      Same    case 


below,  73  S.  C.  71',  52  S.  E.  797. 
See  also  Best  v.  Seaboard  A.  L- 
Ry.  .Co.,  72  S.  C.  479,  52  S.  E. 
223;  Yazoo  &  M.  V.  V.  R.  Co.  v. 
Jackson  Vinegar  Co..  226  U.  S. 
217,  57  L.  Ed.  193,  33  Sup.  Ct. 
40;  So.  Ry.  Co.  ?■.  Love,  139  Ga. 
362,  77  S.  E.  44;  Kansas  C.  S.  Ry. 
Co.  V.  Anderson,  233  U.  S.  825, 
58  L.  Ed.  993,  34  Sup.  Ct.  599, 
affirming  same  styled  case,  104 
Ark.  500,  148  S.  W.  58;  Missouri 
K.  &  T.  R.  Co.  V.  Cade,  233  U. 
S.  642,  58  L.  Ed.  113,  34  Sup.  Ct. 
678,  following  Missouri  K.  &  T. 
R.  Co.  v.  Mahafifey,  105  Tex.  394, 
150  S.  W.  881,  and  explaining 
Gulf  C.  &  S.  F.  R.  Co.  V.  Den- 
nis, 224  U.  S.  503,  56  L.  Ed.  860, 
32    Sup.    Ct.   542. 


§  35.]  Affecting  Interstate  Commerce.  61 

and  promptly  and  with  less  delay  and  expense  than  any  one  else, 
and  for  the  adjustment  of  loss  or  damage  to  shipments  within 
the  state  forty  days  can  not  be  said  to  be  an  unreasonably  short 
length  of  time." 

The  same  statute  was  held  valid  when  applied  to  an  interstate 
shipment.  The  Supreme  Court  of  South  Carolina,  discussing  the 
•statute  thus  sought  to  be  applied,  said:  ^'^~ 

"The  penalty  imposed  is  for  a  delict  of  duty  appertaining  to 
the  business  of  a  common  carrier,  and  in  so  far  as  it  may  affect 
interstate  commerce,  it  is  an  aid  thereto  by  its  tendency  to  pro- 
mote safe  and  prompt  delivery  of  goods,  or  its  legal  equivalent 
— prompt  settlement  of  proper  claim  for  damages.  No  penalty 
can  attach  except  upon  the  establishment  in  a  court  of  a  default 
■of  duty  imposed  by  statute." 

The  Supreme  Court  of  the  United  States  quoted  the  language 
just  copied  in  the  opinion  holding  that  the  state  statute  was  valid. 

Such  statutes  when  unreasonable  are  void,  whether  affecting 
interstate  commerce  or  not,  and  so  held  of  an  Arkansas  statute 
providing  for  heavy  penalties,  when  the  shipper  recovered  the 
amount  for  which  he  sued,  although  previous  to  his  suit  he  had 
■demanded  a  larger  amount.^'''-" 

In  a  case  involving  the  validity  of  a  Texas  statute  providing 
for  attorneys'  fees  where  judgments  were  rendered  for  loss  of  or 
damage  to  freight,  it  was  urged  that  such  statute  affected  inter- 
state commerce,  and  was  void  because  of  conflict  with  the  Car- 
rnack  Amendment.  This  contention  the  Supreme  Court  met  by 
saying:  "But  the  Texas  statute  now  under  consideration  does 
not  in  any  way  either  enlarge  or  limit  the  responsibility  of  the 
carrier  for  the  loss  of  property  intrusted  to  it  in  transportation, 


'"Atlantic  C.  L.  R.  Co.  v.  Ma-  ing    same    styled    case,    26    vS.    D. 

zursky,   216  U.   S.   122,   132,   54   L.  378,    128   N.   W.   472;    Chicago   M. 

Ed.   411,   30  Sup.   Ct.   378,  affirm-  &  St.  P.  Ry.  Co.  v.  Kennedy,  232 

ing    same    styled    case,    78    S.    C.  U.   S.  626,  58  L.   Ed.  762,  34  Sup. 

36,  58  S.  E.  927,  125  Am.  St.  Rep.  Ct.    463,    reversing    same     styled 

762.  case,  28  S.   D.  94,   132  N.  W.  802. 

"'  St.  Louis,  I.  M.  &  S.  Ry.  Co.  Missouri     K.     &     T.     R.     Co.    v. 

V.   Wynne,   224   U.    S.    354,    56    L.  Tucker,  230  U.   S.   340,   57   L.   Ed. 

Ed.    799,    32    Sup.    Ct.    493.      Fol-  1507,    33    Sup.    Ct.    961,    reversing 

lowed   in    Chicago   M.   St.   P.   Ry.  Tucker   v.    Mo.    Kan.    &   Tex.    R. 

•Co.  V.   Polt,   232   U.    S.    165,   58   L-  Co..   82   Kan.  222,    108    Pac.   89. 
Ed.   554,   34   Sup.   Ct.   301,   revers- 


62  State  Regulation  [§  36. 

and  only  indirectly  affects  the  remedy  for  enforcing  that  re- 
sponsibility." ^''-^ 

Congress  has  dealt  with  the  contract  in  the  Carmack  Amend- 
ment. These  penalty  statutes,  as  stated  by  the  Supreme  Court, 
do  not  affect  the  contract  but  refer  to  the  remedy  for  a  breach 
thereof. i'-"* 

This  distinction  must  not  be  overlooked.  In  the  Texas  case 
supra,  the  loss  for  which  suit  was  brought  occurred  on  the  line 
of  the  delivering  carrier,  and  other  than  this  presumption  there 
was  no  evidence  to  show  which  of  the  carriers  transporting  the 
commodity  caused  the  damage  thereto.  The  Carmack  Amend- 
ment gives  a  right  of  action  against  the  initial  carrier.  So  a 
later  South  Carolina  judgment  was  reversed,  ^"^  not  because  of  the 
provision  for  the  recovery  of  an  attorney's  fee,  but  because  the 
right  to  recover  both  damages  and  attorney's  fees  was  based 
upon  a  statute  in  conflict  with  the  federal  law.  With  this  dis- 
tinction in  mind,  the  later  South  Carolina  case  is  in  harmony  with 
the  decision  in  the  Texas  case.  In  the  South  Carolina  case,  the 
Texas  case  and  other  cases  are  cited  and  the  applicable  principle 
stated  as  follows:  ^'^  ".When  Congress  has  taken  the  particular 
subject-matter  in  hand,  coincidence  is  as  ineffective  as  opposi- 
tion, and  a  state  law  is  not  to  be  declared  a  help  because  it  at- 
tempts to  go  farther  than  Congress  has  seen  fit  to  go." 

§  36.  Requiring  Railroads  to  Perform  Transportation 
Service. — It  is  axiomatic  that  a  common  carrier  is  not  at  liberty 
to  accept  or  decline  shipments  or  to  accept  or  decline  the  duty 
of  transporting  passengers.  Reasonable  rules  as  to  the  time, 
place  and  manner  of  receiving  freight  and  passengers  may  be 
made  by  the  carrier,  but  these  are  subject  to  the  governmental 
power  of  regulation.  The  regulation  of  interstate  transporta- 
tion in  this  respect  is  for  Congress,  but  the  states  have  juris- 
diction  over  intrastate  transportation  of  persons  and  property. 


""Missouri   K.    &  T.   R.    Co.  z:  '"Sec.  32.  ante. 

Harris,  234  U.  S.  412.   58   L.   Ed.  ""  Charleston  &  W.  C.  Ry.  Co. 

1377,    34    Sup.    Ct.    790.    and   see  v.    Varnville    Furniture    Co..    237 

cases  cited  affecting  the  question  U.   S.   597,   59   L.   Ed.  — ,   35   Sup- 

arising    on    state    legislation    and  Ct.  715. 
question    arising   under    the    Car- 
mack   Amendment. 


§  37.]  Affecting  Interstate  Commerce.  63 

These  principles  were  stated  by  Mr.  Justice  Brewer,  as  fol- 
lows :  ^"'^ 

"The  question  we  have  to  consider  is  the  power  of  the  state 
'  to  enforce  an  equality  of  local  rates  as  between  all  parties  ship- 
ping for  the  same  distance  over  the  same  road.  That  a  state 
has  such  power  can  not  be  doubted,  and  it  can  not  be  thwarted 
by  any  action  of  a  railroad  company  which  does  not  involve  an 
actual  interstate  shipment,  although  done  with  a  view  of  pro- 
moting the  business  interests  of  the  company.  Even  if  a  state 
may  not  compel  a  railroad  company  to  do  business  at  a  loss  and 
conceding  that  a  railroad  company  may  insist,  as  against  the 
power  of  the  state,  upon  the  right  to  establish  such  rates  as  will 
afTord  reasonable  compensation  for  the  services  rendered,  yet 
when  it  voluntarily  establishes  local  rates  for  some  shippers 
it  can  not  resist  the  power  of  the  state  to  enforce  the  same  rates 
for  all." 

Mr.  Justice  Hill,  of  the  Supreme  Court  of  Georgia,  in  holding 
valid  a  statute  of  that  state  preventing  discrimination  in  the  sale 
■of  passenger  tickets  by  connecting  carriers,  showed  how  an- 
cient is  this  right  to  regulate.     He  said :  ^''^ 

"The  principle  of  the  right  of  a  state  or  government  to  reg- 
ulate carriers  and  rates  for  public  services  performed  is  not 
new,  but  seems  to  date  back  to  a  very  ancient  period.  So  far  as 
the  writer's  research  extends,  it  goes  at  least  as  far  back  as 
2250  years  before  the  birth  of  Christ,  to  the  reign  of  Ham- 
murabi, the  King  of  ancient  Babylon,  who  had  a  complete  code 
of  laws  for  that  time.  Indeed,  our  laws  of  the  present  day  have 
few  underlying  principles  that  do  not  seem  to  be  contained  in 
this  primitive  code." 

§  37.  Sale  and  Regulation  of  Passenger  Tickets. — The 
contract  or  ticket  for  transportation  of  a  person  over  a  railroad 
is  subject,  like  the  rate,  to  reasonable  regulation.  The  power 
to  regulate  rests,  as  to  travel  among  the  states  and  with  for- 
eign countries,  with  the  federal  government ;  and,  as  to  travel 
within    one    state,    with    the    state    government.      As    to    those 

'"Ala.    &   V.    R.    Co.   v.   Missis-  '"Stephens  v.  Cent,  of  Ga.  Ry. 

sippi    R.    R.    Com.,   20.3   U.    S.   49fi,  Co.,    138    Ga.    62.5,    628.    629.   75    S. 

501,    .51    L.    Ed.    289,    27    Sup.    Ct.  E.   1041,  42  L.   R.   A.   (N.   S.)    541, 

163,    affirming    same    styled    case,  1913E,    Ann.    Cas.    609. 
■86    Miss.    667,    38    So.    356. 


64 


State  Regulation 


Z7. 


contracts  within  their  regulating  power,  the  states  may  make  all 
reasonahle  rules.  \\'hat  is  a  reasonable  rule  must  depend  upon 
the  facts  of  each  case.  It  is  not  unreasonable  to  require  the 
carrier  to  redeem  tickets  or  unused  portions  thereof. ^"'^  Xor  * 
is  a  law  which  requires  that  tickets  may  not  be  sold  except  by 
authorized  agents  of  the  carrier  unreasonable,  and  such  a  law 
applying  to  the  acts  of  agents  within  a  state  has  no  direct  effect 
on  interstate  commerce  although  the  ticket  sold  may  be  a  con- 
tract authorizing  the  purchaser  to  travel  from  one  state  to  an- 
other. Congress  has  not,  as  yet,  attempted  to  regulate  relating 
to  this  subject. 

Referring  to  a  statute  limiting  the  right  to  sell  tickets  to 
agents  of  the  carrier,  the  Supreme  Court  of  Illinois,  in  deciding 
that  the  statute  referred  to  all  tickets,  accurately  stated  the  rea- 
sons why  interstate  commerce  was  not  interfered  with  as  fol- 
lows :  i-^« 


"■'-'  Missouri.  K.  &  T.  Ry.  Co.  v. 
Fookes,    —    Tex.    Civ.    App.    — , 

40  S.  W.  858.  And  carriers  may 
legally  require  the  purchase  of  a 
ticket  and  in  default  charge  a 
higher  rate,  Coyle  v.  So.  Ry.  Co., 
113   Ga.    121.   37   S.    E.   163. 

''"Burdick    V.     People,     149     111. 
600,  36  N.  E.  948,  24  L.  R.  A.  152, 

41  Am.  St.  Rep.  329.  To  same 
effect.  State  v.  Corbett,  57  Minn. 
345,  59  N.  W.  317,  24  L.  R.  A. 
498;  State  v.  Thompson,  47  Oreg. 
639,  84  Pac.  476,  4  L.  R.  A.  (N. 
S.)  480;  Commonwealth  v.  Keary, 
198  Pa.  St.  500,  48  Atl.  472.  As 
to  the  validity  of  such  legislation 
as  to  state  transportation,  see 
Samuelson  v.  State,  116  Tenn. 
470,  95  S.  W.  1012,  115  Am.  St. 
Rep.  805;  Fry  v.  State,  63  Ind.  552, 
Jannen  v.  State,  42  Tex.  Cr.  App. 
631,  51  S.  W.  1126,  62  S.  W.  419 
(right  to  regulate  sustained); 
State  V.  Bernheim,  19  Mont.  512, 
49  Pac.  441;  Ex  Parte  O'Neil,  83 
Pac.  104.  The  legislatures  of 
many  states  have  appreciated  the 
unlawful    and     fraudulent     char- 


acter of  the  ticket  scalpers'  busi- 
ness, and  statutes  have  been  en- 
acted making  dealing  in  these 
tickets  by  others  than  an  author- 
ized agent  of  the  carrier  a  vio- 
lation of  the  criminal  law,  viz: 
Pennsylvania,  New  Jersey,  Illi- 
nois, Indiana,  Minnesota,  Georgia, 
Maine,  Texas,  North  Carolina, 
Tennessee,  North  Dakota,  Ore- 
gon, Montana,  Florida  and  New 
York.  "Laws  of  New  York, 
1901,  c.  639,  proliibiting  private 
individuals  from  selling  railroad 
tickets,  and  forbidding  the  offi- 
cers of  a  common  carrier  from 
supplying  tickets  for  sale  to  any 
other  than  an  authorized  agent, 
has  been  declared  by  the  New 
York  Court  of  Appeals  not  a 
valid  exercise  of  the  power  of  the 
legislature  to  regulate  the  conduct 
of  a  railroad  company's  business 
because  it  is  a  creation  of  the 
legislature  and  a  common  carrier."" 
People  V.  Caldwell,  71  N.  Y. 
Supp.  654,  64  App.  Div.  46, 
Musco  V.  United  Surety  Co.,. 
132    App.    Div.    300,    117    N.    Y. 


§  37.]  Affectinx.  Interstate  Commerce.  65 

"State  legislation,  which  is  not  an  obstacle  to  interstate  com- 
merce, and  imposes  no  burden  upon  it,  and  which  comes  within 
a  proper  exercise  of  the  police  power,  is  not  unconstitutional, 
as  infringing  upon  the  powers  of  Congress.  The  act  of  1875 
is,  we  think,  such  a  species  of  state  legislation.  The  duties  which 
it  imposes  upon  the  carriers  therein  named,  and  their  agents 
can  not  interfere  with  the  freedom  of  interstate  travel.  vSuch 
travel  is  not  impeded  because  tickets  are  required  to  be  pur- 
chased from  agents  of  the  carrier  who  are  provided  with  cer- 
tificates of  their  authority.  The  limitation  of  the  sale  of  tickets 
to  such  agents  may  be  a  restraint  upon  the  business  of  scalpers 
and  ticket  brokers,  but  can  not  be  regarded  as  a  burden  upon 
interstate  commerce."' 

The  contract  of  interstate  transportation  can  not  be  controlled 
by  a  state  and  a  state  law  making  an  interstate  ticket  binding 
for  six  years  and  giving  stop-over  privileges,  no  such  provision 
being  in  the  contract,  is  void,^^^  and  so  is  a  law  requiring  car- 
riers to  give  shippers  of  live  stock  free  transportation  in  inter- 
state' commerce. ^^-  A  state,  as  to  intrastate  travel,  may  require 
carriers  who  have  voluntarily  issued  commutation  tickets  to 
designate  specifically  both  termini  of  such  tickets. ^^^  This  rule 
of  law  has  support  in  the  principle  that  although  a  special  rate 
or  privilege  may  not  be  compelled,  if  it  should  be  voluntarily 
granted   by   the   carrier,   the   privilege   while   existing   is   so   far 

Supp.  21,  affirmed   196  X.  Y.  459,  "'Delaware.    L.    &    W.    R.    Co. 

90  N.   E.   in.     Such   a  regulation  r.  Frank.  110  Fed.  689;  Louisville 

was  held  invalid  by  the  Court  of  &    N.    R.    Co.    v.    Bitterman,    144 

Appeals  of  New  York  in  People  Fed.  34,  75  C.  C.  A.  192,  affirmed 

ex    rel.      Tyroler    v.    Warden    of  by   Supreme   Court,   Bitterman   v. 

City  Prison,  157  N.  Y.  116.  51  X.  Louisville    &    N.    R.    Co.,    207    U. 

E.   1006,  43   L.   R.   A.  264,   68  Am.  S.    205,    52    L.    Ed.    171,    28    Sup. 

St.   Rep.   763,   reversing  the   same  Ct.    91. 

case   in   26  App.   Div.   226,   50   N.  '"'  La    Farier    v.    Grand    Trunk 

Y.   Supp.     56.     The   reversal   was  Ry.    of    Canada.   84   Me.   284,   286, 

placed    upon    the   contention    that  24  Atl.  848. 

the   statute   violated   the   citizens'  '^  Delaware,  L.  &  W.  R.  Co.  v. 

liberty  to  contract,  and  not  upon  Public    Utility    Comr's,    84    N.    J. 

the   commerce   clause   of   the   fed-  619,    87    Atl.    801.      For    a    discus- 

eral       constitution.       The       New  sion     of    a     related     subject     see 

York  court  is  not  in  accord  with  Rules    and    Regulations    Govern- 

the    general    and    better    rule    an-  ing    Checking   of    Baggage,   35    L 

nounced   in   the   cases  supra.  C.    C.   157. 
—3 


66  State  Regulation  [§  38. 

subject  to   regulation   as   to  prevent  discrimination ;  ^^-^   but  the 
carrier  may  change  its  poHcy  and  withdraw  the  privilege. ^^^ 

§  38.  Same  Subject^Mileage  Books — Party  Rate  Tick- 
ets.— It  has  become  a  general  practice  for  railroads  to  sell  mile- 
age books  which  entitle  passengers  complying  with  the  terms 
stated  therein  to  transportation  at  a  rate  less  than  the  rate  where 
a  single  ticket  is  purchased.  By  a  mileage  ticket,  one  person 
gets  a  number  of  rides  at  less  than  the  usual  fare,  by  a  party 
rate  ticket  a  number  of  persons  get  one  ride  each  at  less  for 
each  one  than  would  be  the  rate  if  each  bought  a  single  ticket. 
The  Supreme  Court  has  held  that  party  rate  tickets  open  to  all 
are  not  discriminatory  under  the  Act  to  Regulate  Commerce ;  ^^^ 
and  in  the  same  case  it  was  held  that  a  party  rate  ticket  was 
neither  a  mileage  nor  a  commutation  ticket.  Section  22  of  the 
Act  to  Regulate  Commerce  provides :  "That  nothing  in  this 
Act  shall  prevent  *  *  *  the  issuance  of  mileage,  excursion 
or  commutation  passenger  tickets."  ^^"  This  provision  indicates 
that  there  was  a  necessity  therefor  to  prevent  such  a  construc- 
tion of  the  Act  as  would  prohibit  the  issuance  of  these  special 
contracts. 

Xo  room  is  left,  if  there  ever  were  such,  for  the  states  to 
regulate  or  recjuire  the  issuance  of  mileage  tickets  for  interstate 
transportation.  The  Interstate  Commerce  Commission  has  held 
.that,  as  to  interstate  transportation  of  passengers,  "the  issuance 
of  mileage  books  is  voluntary,"  but  if  they  are  issued  there  must 
be  no  discrimination,  although  the  carrier  may  "attach  to  the 
contract  such  lawful  conditions  as  it  chooses."  ^^^ 

It  is  believed  that  the  states  may  not  require  the  issuance  of 
these  contracts  and  may  not  prescribe  the  terms  thereof  further 
than  to  prevent  discrimination  in  their  issuance  and  use.  In  1891 
the  state  of  ^Michigan  attempted  to  compel  the  sale  by  carriers 

''*  Alabama   &  V.   Ry.  Co.  v.   R.  Int.    Com.    Com..    145    U.    S.    263. 

R.    Com.   of   Miss.,   203   U.    S.   49G.  36   L.    Ed.   699.   12   Sup.   Ct.   S44. 
51    L.    Ed.    29S,    27    Sup.    Ct.    163.  '''Sec.    444.   tost. 

affirming    same    styled    cause,    86  '*■'  Eschner   v.   Penn.   R.    Co..   IS 

Miss.   667,   38   So.   356.  I.   C.   C.   60,   63,   64;   Re   Practices 

'^  Cent,  of  Ga.   Ry.   Co.  v.  Au-  Governing  Sale  and  Exchange  of 

gusta  Brokerage  Co..  122  Ga.  646.  Mileage    Books.   28    I.    C.    C.   318, 

50  S.  E    473,  69  L.  R.  A.  119.  and  cases  cited.     Rules  and  Reg- 

"'  Baltimore     &    O.     R.     Co.    v.  ulations    Governing    Checking    of 

Bagaage,  35   I.   C.   C.   157.   160. 


§  38.]  Affecting  Interstate  Commerce.  67 

of  mileage  books  under  certain  prescribed  conditions  and,  the 
state  court  having  sustained  the  statute  limiting  its  operation  to 
intrastate  commerce/^^  the  Cjuestion  was  presented  to  the  Su- 
preme Court  of  the  United  States  by  writ  of  error  to  the  state 
court.  Tlie  questions  raised  in  the  Supreme  Court,  as  stated  in 
its  opinion,  were:  "(1)  whether  the  act  violates  the  Constitution 
of  the  United  States  by  impairing  the  obligation  of  any  con- 
tract between  the  state  and  the  railroad  company;  (2)  if  not,  does 
it  nevertheless  violate  the  Fourteenth  Amendment  of  the  Con- 
stitution by  depriving  the  company  of  its  property  or  liberty 
without  due  process  of  law  or  by  depriving  it  of  the  equal  pro- 
tection of  the  laws."  Of  these  contentions  the  court,  in  hold- 
ing the  Alichigan  statute  void,^'^^  said : 

"In  this  case  there  is  not  an  exercise  of  the  power  to  fix  maxi- 
mum rates.  There  is  not  the  exercise  of  the  acknowledged  power 
to  legislate  so  as  to  prevent  extortion  or  unreasonable  or  illegal 
exactions.  The  fixing  of  the  maximum  rate  does  that.  It  is  a 
pure,  bald  and  unmixed  power  of  discrimination  in  favor  of  a 
few  of  the  persons  having  occasion  to  travel  on  the  road  and 
permitting  them  to  do  so  at  a  less  expense  than  others,  pro- 
vided they  buy  a  certain  number  of  tickets  at  one  time.  It  is 
not  legislation  for  the  safety,  health  or  proper  convenience  of 
the  public,  but  an  arbitrary  enactment  in  favor  of  the  persons 
spoken  of,  who  in  the  legislative  judgement  should  be  carried 
at  a  less  expense  than  the  other  members  of  the  community." 

This  decision  would  appear  to  be  conclusive,  although  in  an 
elaborate  opinion  the  Supreme  Court  of  Georgia  has  held  valid 
a  regulation  of  the  Railroad  Commission  of  Georgia  requiring 
railroads,  as  to  intrastate  transportation  from  cities  of  a  desig- 
nated size,  to  honor  mileage  books  on  their  trains  and  prohibit- 
ing the  requirement  in  the  contract  that  mileage  shall  be  ex- 
changed for  a  ticket.^ ^^ 

""Lake  S.   &  M.  S.  Ry.   Co.  v.  1018.    —    L.    R.    A.    (N.    S.)    — . 

Smith,    114   Mich.   4fiO,   72    N.    W.  As    sustaining   the    Georgia   court 

32S.  see      Delaware,      L.      &     W.      R. 

''""Lake   S.   &  M.   S.   Ry.   Co.  v.  Co.    v.    Board    of    Public    Utility 

Smith.    173    U.    S.    084.    69S,    43    L.  Comr's.,  84  N.  J.  L.  Vroom  r,19,  87 

Ed.  858,  19  Sup.  Ct.  565.  Atl.   801.      See   Beardsley   v.   New 

'"Louisville  &  X.  R.   Co.  v.  R.  York,  L.  E.  &  W.  R.  Co..  162  N. 

R.   Com.  of  Georgia.  140  Ga.  817,  Y.  2.32,  56  N.  E.  488,  holding  that 

80    S.    E.    327,    Ann.    Cas.    1915A,  a    statute    requiring   the    issuance 


68 


State  Regulation 


39. 


§  39.  Free  Transportation. — As  to  interstate  transporta- 
tion, Congress  has  so  legislated  as  to  prevent  free  transporta- 
tion except  as  to  certain  designated  persons  and  classes. ^^-  One 
purpose  of  governmental  regulation  of  common  carriers,  if  not 
the  chief  and  most  beneficient,  is  the  prevention  of  favoritism, 
and  that  such  purpose  may  be  accomplished,  states  may,  within 
the  scope  of  the  commerce  subject  to  their  regulation,  prevent 
common  carriers  from  discriminating  by  giving  free  transporta- 
tion of  persons  or  of  property.  Exceptions  to  the  general  rule 
mav  lawfullv  be  made  in  favor  of  certain  public  or  charitable 


of  mileage  books  was  void  and 
reversing  same  styled  case,  17 
Misc.  Rep.  256,  40  N.  Y.  Supp. 
1077,  15  App.  Div.  251,  44  N.  Y. 
Supp.  175.  In'  Attorney  General 
V.  Old  Colony  R.  Co.,  160  Mass. 
62.  35  N.  E.  252,  22  L.  R.  A. 
112,  it  was  held  that  a  similar 
statute  was  void,  the  court  saying: 
"The  objection  that  the  statute 
authorizes  one  railroad  to  make 
conditions  concerning  the  trans- 
portation of  passengers  which 
must  be  performed  by  other  rail- 
roads seems  to  us  valid.  The 
objection  is  not  that  the  legisla- 
ture has  itself  attempted  to  de- 
clare the  rights  of  passengers 
who  have  purchased  mileage 
tickets.  The  legislature,  bj'-  this 
statute,  has  not  determined  the 
conditions  which  shall  be  inci- 
dent to  the  carriage  of  passen- 
gers under  these  tickets;  nor  has 
it  left  them  to  be  determined  by 
the  railroad  company  transport- 
ing the  passengers.  One  rail- 
road is,  in  effect,  authorized  to 
make  a  contract  for  another,  but 
the  railroads  are  not  in  fact  the 
agents  of  each  other  in  issuing 
these  tickets.  It  has  been  often 
said  that  the  legislature  can  not 
make  a  contract  between  two  or 
more  persons  which   they   do  not 


choose  to  make,  although  it  maj' 
sometimes  impose  duties  which 
can  be  enforced  as  if  they  arose 
from  contract.  Without  denying 
the  power  of  the  legislature  to 
determine  the  form  of  the  con- 
tracts which  common  carriers  of 
persons  or  merchandise  must 
make  concerning  transportation, 
and  without  cansidering  the  au- 
thority of  the  legislature  to  del- 
egate this  power  to  a  board  of 
public  officers,  we  are  of  the 
opinion  that  this  power  can  not 
be  delegated  to  private  persons 
or  corporations."  While  the  Su- 
preme Court  of  Georgia  has  held 
that  it  could  regulate  the  use  of 
mileage  books,  the  principles  an- 
nounced by  the  same  court  in 
other  cases  would  permit  the 
withdrawal  by  the  carriers  of 
such  special  contracts.  See  Cen- 
tral of  Ga.  Ry.  Co.  v.  Augusta 
Brokerage  Co.,  122  Ga.  646,  50 
S.  E.  473.  69  L.  R.  A.  119;  South- 
ern Ry.  Co.  V.  Atlanta  Stove 
Works.  12S  Ga.  207,  57  S.  E.  429. 
For  a  discussion  of  the  general 
question,  see  Chicago  R.  I.  &  P. 
Ry.  Co.  v.  Ketchum,  212  Fed. 
986. 

'""Sees.    182.   342.    442,   post,   and 
annotations. 


§  40.]  Affecting  Interstate  Commerce.  69 

purposes,  and  carriers  may  interchange  transportation  service. ^^^ 

A  state  may  not  require  free  transportation  to  shippers  of  cat- 
tle in  interstate  commerce. i^^ 

A  state  statute  authorizing  state  incorporated  railroads  to  is- 
sue transportation  in  payment  for  printing  and  advertising  is 
void  as  to  interstate  transportation. ^^^^ 

§  40.  Routing  Freight. — The  Railroad  Commission  of 
Arkansas  passed  this  regulation :  "In  case  of  failure  on  the 
part  of  the  shipper  to  give  routing  instructions,  it  shall  be  the 
duty  of  the  railroad  receiving  the  shipment  to  forward  it  via 
such  route  as  will  make  the  lowest  rate." 

As  Congress  has  the  exclusive,  undivided  and  plenary  power 
to  regulate  interstate  commerce,  such  a  rule  as  to  that  commerce 
is  void,  although  as  to  an  intrastate  haul  it  would  be  reasonable 
and  valid. 1^^ 

§  41.  When  Interstate  Transportation  Begins  and  Ends. 
— In  determining  the  question  as  to  the  validity  of  a  particular 
regulation  made  by  the  federal  or  state  governments,  it  is  neces- 
sary to  decide  whether  the  transportation  affected  by  the 
regulation  is  interstate  or  intrastate  transportation.  If  the 
transportation    is    to    be    interstate    it    is    subject    to    federal 

"^  State  V.  Martyn,  82  Neb.  225,  nation.     State     v.     Southern     Ry. 

117  N.  W.  719;  Schulz  v.  Parker,  Co..    122    N.    C.    1052,    30    S.     E. 

158  Iowa  42,  139  N.  W.  173.     Ex-  133,  41  L.  R.  A.  246.     Purpose  of 

change      of      transportation      for  Act  to  regulate  commerce  stated: 

newspaper     advertising     violates  Rates   for  Transportation  of  An- 

Anti-Pass     law.     State    v.    Union  thracite  Coal.  35  I.  C.  C.  220,  289. 

Pac.    R.    Co.,   87    Neb.   29,   126    N.  "*  State  v.  Otis,  60  Kan.  248,  56 

W.   859.     A   valid   contract   for   a  Pac.    14.      See   note,    182,   supra. 

pass  not  abrogated  by  Anti-Pass  ^'■'"  Chicago,    I.    &    L.    R.    Co.    v. 

statute       subsequently       enacted.  United   States,   219   U.    S.   486,   55 

Emerson  v.  Boston  &  M.  R.  Co.,  L.    Ed.   305,   31    Sup.    Ct.   272.    af- 

75    N.    H.    427,    75    Atl.    529;    but  firming     United     States     v.     Chi- 

contra  as  to  federal  statute,  Lou-  cago,    I.    &    L.    R.    Co..    163    Eed. 

isville    &   N.    R.    Co.    v.    Mottley,  114.     See  also  Louisville  &  N.  R. 

219   U.    S.   467,   55    L.    Ed.    297,   31  Co.  v.  Mottley,  211  U.   S.  149,   53 

Sup.   Ct.  265,  34  L.  R.  A.   (N.   S.)  L.    Ed.   126,   29   Sup.    Ct.   42. 

671.     States  may  not  compel  free  ""St.   Louis   &  S.   F.   R.    Co.  v. 

transportation    to    officials,    Dela-  Allen,  181  Fed.  810;  Porter  v.  St. 

ware,  L.   &  W.   R.   Co.  v.   Public  Louis    &    S.    F.    R.    Co.,    78    Ark. 

Utility    Com'rs,    85    N.    J.    L.    28,  182,    95    S.    W.    953.      For    other 

88  Atl.  849.     Free  transportation  cases  see  Dec.  Dig.,  Key  No.  Ti- 

violates    statute   against    discrimi-  tie    Commerce,    Sees.   8   and   61. 


70  State  Regulation  [§  -^l- 

regulation  and  excluded  from  state  regulation  from  the  time 
it  begins.  It  makes  no  difference  that  the  particular  service 
sought  to  be  regulated  is  performed  wholly  in  one  state,  if 
the  transportation  is  interstate.  In  Coe  v.  Errol,^^"  the  Su- 
preme Court  stated  negatively  when  the  interstate  transporta- 
tion began  by  saying  it  did  not  begin  until  the  goods  "have  been 
shipped,  or  entered  with  a  common  carrier  for  transportation  to 
another  state,  or  have  been  started  upon  such  transportation  in 
a  continuous  route  or  journey."'  In  another  part  of  the  opin- 
ion it  was  said  that  goods  are  in  interstate  commerce  when  they 
have  "actually  started  in  the  course  of  transportation  to  an- 
other state,  or  delivered  to  a  carrier  for  transportation." 

In  Covington  Stock  Yards  Co.  z'.  Keith. i^*  the  rule  as  to 
both  the  beginning  and  ending  of  the  transportation  was  stated 
as  follows :  "The  transportation  of  live  stock  begins  with  their 
delivery  to  the  carrier  to  be  loaded  upon  its  cars,  and  ends  only 
after  the  stock  is  unloaded  and  delivered,  or  offered  to  be  de- 
livered, to  the  consignee." 

Freight  tendered  for  through  transportation  is  within  the  regu- 
lating power  of  the  federal  government,  although  a  bill  of 
lading  can  not  be  issued  until  the  agent  learns  from  his  superiors 
the  legal  rate.^^^ 

A  car  containing  interstate  shipments  is,  prior  to  reaching  its 
destination,  engaged  in  interstate  commerce,  although  stopped 
for  repairs.-*^"  \Mien,  however,  the  transportation  contract  has 
been  completed,  the  fact  that  such  completed  contract  was  one 
of  interstate  transportation  will  not  make  a  subsequent  ship- 
ment of  the  same  goods  to  a  point  in  the  same  state  one  of  in- 


"'  Coe   z:    Errol.   116   U.   S.   517,  and    followed.    United    States    v. 

527.    29    L.    Ed.    715;    6    Sup.    Ct.  Union     Stock     Yard     &     Transit 

475.  followed.  Sou.  Pac.  Terminal  Co.,  226  U.  S.  2S6,  57  L.  Ed.  226, 

Co.  V.  Interstate   Com.   Com.,  219  33   Sup.    Ct.   S3. 

U.   S.  498,   527,   55   L.   Ed.   310,   31  '»''  Southern  Ry.   Co.  z:  Burling- 

Sup.    Ct.   279;   and    111.    C.   R.    Co.  ton    Lumber    Co..    225    U.    S.    99, 

z:   Louisiana   R.   R.   Com..   236   U.  56   L.   Ed.   1001,   32   Sup.    Ct.   657; 

S.     157.    59    L.    Ed.    — ,    35     Sup.  and    cases    cited. 

Ct.    Rep.    275.  ^'-Delk    v.    St.    Louis    &    S.    F. 

"'Covington    Stock    Yards    Co.  R.   Co.,   220  U.   S.   580,   55   L.   Ed. 

V.    Keith,    139    U.    S.    128,    136,    35  590,   31    Sup.    Ct.   617. 
L.  Ed.  73,  11  Sup.  Ct.  416,  quoted 


§  42.]  Affecting  Interstate  Commerce.  71 

terstate  transportation.-'^ ^  A  shipment  intended  for  a  point  in 
another  state  can  not  be  billed  to  a  point  in  the  state  in  which 
the  shipment  originated  and  then  rebilled  to  the  destination 
point  on  the  sum  of  the  intermediate  local  rates.  The  through 
interstate  rate  must  be  applied.  In  discussing  this  question  the 
Interstate  Commerce  Commission  said:-*'-  "This  commission, 
as  hereinbefore  stated,  has  steadfastly  adhered  to  the  proposi- 
tion that  on  any  through  carriage  of  tratfic  between  interstate 
points  the  lawfully  published  interstate  rate  must  be  applied  by 
the  carrier  and  paid  by  the  shipper,  and  that  where  the  through 
interstate  rate  in  effect  between  two  points  is  higher  than  the 
aggregate  of  the  intermediate  rates  any  plan  of  first  billing  to  an 
intermediate  point  a  shipment  that  is  really  intended  to  reach  a 
destination  beyond  is  simply  a  device  for  defeating  the  lawful 
through  rate,  and  is  unlawful."' 

§  42.  Attachments  and  Garnishments. — Interstate  carriers 
must  of  necessity  interchange  cars,  and  from  this  interchange  of 
cars  and  from  the  transaction  of  through  business  credits  arise 
in  favor  of  one  carrier  against  another.  Whether  or  not  these 
cars  and  credits  belonging  to  a  railroad  of  another  state  may  be 
reached  by  process  of  attachment  and  garnishment  was  a  mooted 
question  in  the  state  courts.  Where  a  railroad  company  of  a 
state  received  the  cars  of  a  railroad  company  of  another  state 
under  a  contract  by  which  the  domestic  company  had  the  right 
to  carry  the  loaded  car  to  its  destination  and  to  reload  and  re- 
turn the  car  to  the  owner  in  another  state,  it  was  held  that  gar- 
nishment served  on  the  domestic  company  would  not  in  the  ab- 
sence of  a  lien  hold  the  foreign  car.  This  decision  was  based 
upon  the  local  law,  and  in  the  same  case  it  was  held  that  such 
garnishment  was  not  illegal  on  the  ground  that  it  affected  in- 
terstate commerce.-''^     The   same  court   subsequently  held  that 

="^Gulf,    C.   &   S.    F.   Ry.    Co.  V.  T.   &  S.   F.   Ry.   Co.,   34   I.   C.    C. 

Texas     204   U.    S.   40,-3,    51    L.    Ed.  271,    276. 

540,  27  Sup.  Ct.  360,  cited  and  dis-  ""'Southern   Flour   &   Grain   Co. 

tinffuished   in   Southern  Pac.  Ter-  v.    Northern     Pac.     Ry.     Co.,    127 

minal     Co.     v.     Interstate     Com-  Ga.   626,  56  S.   E.  742,  9   L.   R.  A. 

merce    Commission,    supra:    Chi-  (N.    S.)    853,    119    Am.    St.    Rep. 

caffo    M.    &    St.    P.    Ry.    v.    Iowa,  356;  Southern  Ry.  Co.  v.   Brown, 

233    U.    S.   334,    58    L.    Ed.   988,    34  131    Ga.  245,  62  S.  E.  177.     Agree- 

Sup.    Ct.   592.  inof    with    the    Georgia    court    on 

'"'  Kanotex    Refining    Co.    v.    A.  the     right    growing     out    of     the 


72  State  Regulation  [§  42. 

where  "the  car  was  an  empty  freight  car,  and  all  use  thereof  by 
the  claimant  under  the  contract  had  ceased,  and  nothing  re- 
mained to  be  done  except  to  return  it  to  the  owner,"  that  the 
levy  of  an  attachment  upon  the  car  was  valid. -'^■* 

The  questions  of  local  law  are  not  within  the  purview  of  this 
discussion  and  the  differences  between  the  state  courts  as  to 
the  federal  question  have  as  to  the  general  right  been  settled  by 
the  Supreme  Court  of  the  United  States. 

A  case  arose  where  certain  freight  cars  and  certain  credits  of 
a  corporation  of  Indiana  and  Ohio  were  sought  to  be  reached 
by  garnishment  against  a  carrier  in  Iowa  which  had  in  its,  pos- 
session such  cars  and  credits.  The  cars  had  moved  to  Iowa  in 
interstate  commerce  and  the  credits  arose  from  such  commerce. 
The  cars  had  been  unloaded  and  had  not  started  on  the  return 
trip.  The  trial  federal  judge  denied  effect  to  the  garnishment  in 
language  which  presents  that  view  as  forcibly  as  it  can  be  ex- 
pressed.-*^'^ The  Supreme  Court  reversed  the  lower  court  and 
held  that  under  the  circumstances  of  that  case  the  garnishment 
was  valid.  The  opinion  of  the  court  written  by  ^Ir.  Justice  Mc- 
Kenna  indicates  that  there  might  be  circumstances  under  which 
the  attachment  or  garnishment  would  not  be  valid. -'^'^ 

contract     but    disagreeing    as     to  York   C.   &  H.   R.   Co.,  75   N.   H. 

the    question    of    interstate    com-  15S,      71      Atl.      868;      Cavanaugh 

merce,    see,    Wall    v.    Norfolk    &  Bros.  v.   Chicago,  R.  I.  &  P.  Ry. 

W.    Ry.    Co.,    52    W.    Va.    485,    44  Co.,    75    N.    H.    243,    72    Atl.    694. 

S.    E.    294.    64    L.    R.   A.    501,   and  See   also   Humphries  v.   Hopkins, 

see   note,  94   .A.m.   St.   Rep.   948.  SI    Cal.    551,    22    Pac.    892;    Mon- 

■"*  Cent,     of     Ga.     Ry.     Co.     v.  trose    Pickle    Co.    v.    Dodson,    76 

Evans,   133   Ga.   639,   66   S.   E.  788.  Iowa   172,  40   N.  W.   705,  2  L.   R. 

For    other    authorities    discussing  A.     417,    14    Am.    St.    Rep.     213; 

the  question  see,  Michigan  C.  R.  Bates    v.    Chicago,    M.    &    St.    P. 

Co.  V.   C.    &'  M.   L.   S.   R.    Co.,    1  Ry.    Co.,   60  Wis.   296,   19   N.   W. 

111.  App.  399,  — ;  Connery  v.  R.  R.  72,    50    Am.    St.    Rep.    369. 
Co.,   92  Minn.   20,   99   N.   W.   365;  ="' Davis   z:    Cleveland,    C.    C.    & 

Shore  &  Bro.  v.  Baltimore  &  O.  St.   L.   R.   Co.,   146   Fed.  403,  411, 

Ry.    Co.,    76    S.    C.    472,    57    S.    E.  and.  see    cases    cited. 
526;    Seibels    v.    Northern    C.    Ry.  '""Davis   v.    Cleveland,    C.    C.    & 

Co.,    80    S.    C.    133,    61    S.    E.    435;  St.    L.    R.    Co.,    217   U.    S.    157,    54 

Chicago  &  N.  W.  Ry.  Co.  v.  For-  L.  Ed.  70S,  30  Sup.  Ct.  463,  cited 

est    County,    95    Wis.    80,    70    N.  in   Minnesota   Rate   Cases   at   pp. 

W.    77.      A    negative    answer    has  409    and    410;    and    see    Pullman 

been      given      in      the      following  Co.   v.    Linke,   203    Fed.    1017. 
cases:      DeRochemont      v.      New 


§  43.]  Affecting  Interstate  Commerce.  73 

§  43.  Rates. — A  common  carrier  is  so  far  engaged  in  the 
performance  of  a  public  service  that  its  rates  or  charges  may; 
within  certain  limitations,  be  fixed  by  governmental  agencies. 
This  principle  not  only  had  its  foundation  in  the  earliest  known 
lawSj-^"^  but  it  is  a  principle  which  has  been  exercised  and  ac- 
cepted with  significant  uniformity.  The  Supreme  Court  of  the 
United  States  said:  "State  regulation  of  railroad  rates  began 
with  railroad  transportation ;''  and  in  the  same  opinion  it  was 
said:  208  "The  authority  of  the  state  to  limit  by  legislation  the 
charges  of  common  carriers  within  its  borders  was  not  confined 
to  the  power  to  impose  limitations  in  connection  with  grants  of 
corporate  privileges.  In  view  of  the  nature  of  their  business,  they 
were  held  subject  to  legislative  control  as  to  the  amount  of  their 
charges  unless  they  were  protected  by  their  contract  with  the 
state." 

In  the  early  history  of  state  regulation  of  railroad  rates,  the 
Supreme  Court  used  language  that  "went  further  than  to  sus- 
tain the  state  law  with  respect  to  rates  for  purely  intrastate  car- 
riage" and  "treated  as  being  within  the  state  power"  rates  on  in- 
terstate transportation.  This  decision  was  very  soon  modified 
and  the  power  of  the  state  limited  to  regulating  rates  on  intra- 
state transportation.-*^^ 

It  has  been  held,  upon  what  seems  inconclusive  reasoning,  that 
where  a  state,  being  the  owner  of  an  interstate  railroad,  leases 
the  road  with  a  provision  reserving  to  the  state  the  right  to  make 

'"''  Stephens  v.  Cent,  of  Ga.  Ry.  a    rate    on    one    commodity,    oil, 

Co.,    138    Ga.    625,    75    S.    E.    1041,  was    sustained    by    the    Supreme 

42  L.  R.  A.  541,  Ann.  Cas.  1913E,  Court   of   Kansas, — Tucker   v.  Mis- 

COa.  souri    Pac.    R.    Co.,    82    Kan.    222, 

^"^  Simpson  v.  Shepard,  230  U.  108  Pac.  89;  and  see  German 
S.  352,  57  L.  Ed.  1511.  33  Sup.  Alliance  Ins.  Co.  v.  Lewis,  233 
Ct.  729.  At  page  412  of  the  orig-  U.  S.  389,  58  L.  Ed.  1011,  34  Sup. 
inal  opinion  is  given  a  list  of  Ct.  612,  sustaining  a  law  of  Kan- 
early  state  laws,  which  list  is  sas  fixing  the  price  of  fire  insur- 
followed  by  a  history  of  the  de-  arice. 

cisions  of  the  Supreme  Court  re-  ^'"'  Simpson   v.   Shepard,   230   U. 

lating   to    rate    regulation    by    the  S.    352,    citing   as    supporting    the 

.states.     For  a   further    summary  statement    in    the    text,    Peik    v. 

of    state     legislation    see.     Inter-  Chicago  &  N.  W.  Ry.  Co.,  94  U. 

state    Com.    Com.    v.    Cincinnati,  S.  164,  24  L.  Ed.  97,  and  Wabash, 

N.   O.   &  T.   P.   Ry.   Co.,   167   U.  St.   L.    &   P.   Ry.   Co.   v.   Illinois, 

S.    479,    495,    496,    42    L.    Ed.    243,  118    U.    S.    557,    30    L.    Ed.    244,    7 

1"^  Sup.  Ct.  896.     A  statute  fixing  Sup.  Ct.  4. 


74  State  Regulation  [§  43. 

"just  and  reasonable  rules,  orders,  schedules  of  freight  and  pas- 
senger tariffs,"  that  such  resers^ation,  so  far  as  concerns  inter- 
state rates,  is  void  as  in  conflict  with  the  commerce  clause  ot 
the  federal  constitution.  It  would  seem  that  as  the  state,  as 
owner,  like  other  owners,  had  the  right  to  initiate  rates  intrastate 
or  interstate,  such  right  could  be  reserved  in  a  lease  of  its  road, 
and  that  in  the  first  instance  the  state  could  require  its  lessee  to 
comply  with  the  lease.  The  Interstate  Commerce  Commission 
could  control  the  interstate  rate  so  fixed  in  like  manner  as  other 
rates  made  by  other  owners  of  carriers,  but  that  fact  should 
not  prevent  the  state  from  making  the  rate  in  the  first  instance.^^'^ 
.  In  the  recent  ^Minnesota  Rate  Case,^^^  the  power  of  the  states 
to  regulate  railroad  rates  for  transportation  between  points  in 
the  same  state  is  reiterated  and  fully  stated.  This  power  is, 
therefore,  under  existing  federal  statutes,  indisputable.  The 
power  is  not,  however,  unlimited  and  must  be  exercised  in  such 
way  as  not  to  infringe  the  carrier's  constitutional  rights  under 
the  Fourteenth  Amendment  to  the  Constitution"  of  the  United 
States. 

Classification  of  commodities  is  a  necessar}^  preliminary  to  any 
system  of  rates,  and  the  right  to  prescribe  a  rate  for  the  future 
includes  the  right  to  classify  commodities.  This  classification 
must  not  be  arbitrary  or  unreasonable  but,  in  making  a  classifi- 
cation, the  rate  making  body  "is  not  precluded  from  the  con- 
sideration of  economic  considerations  recognized  by  the  carriers 
in  the  conduct  of  their  business,"  but  "may  consider  and  act  on 
every  economic  or  industrial  factor  potentially  influencing  the 
operation  of  a  railroad  in  the  transportation  of  freight."  -^^ 
Joint  rates  would,  if  the  whole  rate  is  intrastate,  be  within  the 
regulating  power  of  the  states. ^^^    The  right  to  prescribe  reason- 

""  State   of   Georgia  v.  Western  Traction    Light    &   Power    Co.   v. 

&   A.   R.    Co.,    138    Ga.    835,   76   S.  Reynolds.   223   Fed.   371. 

E.   577.  ^'  Southern   Ry.   Co.  v.  Atlanta 

="  Simpson    v.    Shepard,    supra,  Stove  Works,   128   Ga.   207,   57   S. 

and  Cent,  of  Ga.  R.  Co.  v.  R.  R.  E.  429,  an  able  opinion,  in  which 

Com.   of   Ala..   209   Fed.   75;   Dar-  is  discussed  'the  principles  of  reg- 

nell    v.    Edwards,    209     Fed.    99;  ulation. 

Chicago     &     N.     W.     R.     Co.    v.  -''Hill,   et   al.    Com'rs.  v.   Wad- 
Smith,    210    Fed.     632;     Southern  ley  Sou.   Ry.   Co.,  12S  Ga.  705,  57 
Pac.    Co.  V.   R.   R.   Com.   of   Ore-  S.   E.   795. 
gon,   208   Fed.   926;    Puget   Sound 


§  44.]  Affecting  Interstate  Commerce.  7h 

able  rates  includes  the  right  to  prohibit  rates  which  are  unjustly 
discriminatory.- 1-' 

§  44.  Intrastate  Rates  Which  Affect  Interstate  Rates. — 
A  state  may  not  regulate  intrastate  rates  by  the  standard  of  in- 
terstate rates  by  basing  a  rate  for  a  short  haul  within  the  state 
upon  the  carrier's  rate  for  the  long  haul  over  the  same  line 
when  the  long  haul  is  between  states. -^-"^  And  when  local  rates 
are  made  for  the  purpose  and  have  the  effect  of  so  regulating 
transportation  that  commerce  which  might  be  interstate  is  forced 
to  move  intrastate,  and  when  the  local  rates  discriminate  against 
the  interstate  rates,  the  regulation  making  such  local  rates  is 
invalid. 

The  Railroad  Commission  of  Texas  established  rates  between 
points  in  that  state  which  the  railroads  accepted,  and  which  dis- 
criminated in  favor  of  localities  in  Texas  and  against  localities 
in  Louisiana.  Upon  petition  on  behalf  of  the  localities  in  Louis- 
iana against  the  carriers,  the  Literstate  Commerce  Commission 
held  that  this  discrimination  was  unlawful  and  unjust.-^'^  Suit 
having  been  filed  in  the  Commerce  Court  to  set  aside  the  order 
of  the  Commission,  it  was  held  that  the  carriers-  were  guilty  of 
unlawful  and  unjust  discrimination,  and  that  it  was  no  defense 
that  such  discrimination  resulted  from  the  orders  of  the  Texas 
Commission. -1"  An  appeal  was  taken  from  the  Commerce  Court 
to  the  Supreme  Court,  -^^  and  the  order  of  the  Commission  was 
sustained  in  an  opinion  written  by  Mr.  Justice  Hughes.  The 
opinion  was  based  upon  the  right  of  Congress  "to  keep  the  high- 
ways of  interstate  communication  open  to  interstate  traffic  upon 
fair  and  equal  terms."  The  opinion  of  the  Court  is  so  clear 
and  cogent  that  its  correctness  can  but  be  acknowledged.  To 
permit  states  to  prescribe  interstate  rates  under  which  citizens 
of  the  states  may  exclude  from  competition  with  themselves, 
shippers  located  in  other  states  from  whose  locations  the  trans- 
portation conditions  are  similar  to  those  from  points  in  the  state, 

='*  Portland  Ry.  Light  &  P.  Co.  St.    Louis    S.    W.    Ry.    Co.,    23    L 

V.  R.  R.  Com.  of  Oregon,  229  U.  C.   C.  31. 

S.  397,  57  L.  Ed.  1248,  33  Sup.  '"Texas  &  P.  Ry.  Co.  v.  United 
Ct.  820,  affirming  same  styled  States,  Commerce  Court  Re- 
case,    56   Or.   468,    105    Pac.   709.  ports     No.     68,     p.     655,    205    Fed. 

'"Louisville    &    N.    R.     Co.    v.  380. 

Eubanks,  184  U.  S.  27,  46  L.   Ed.  "'Houston    E.    &    W.    T.    Ry. 

416,    22    Sup.    Ct.    277.  Co.  v.  U.   S.,  234  U.   S.  342,  58  L. 

"°  Railroad  Com.  of  Louisiana  v.  Ed.    1341,   34   Sup.   Ct.   833. 


76  State  Regulation  [§  45. 

would  be  to  effectuate  the  purposes  to  prevent  which  was  the 
principal  object  of  the  Constitution  of  the  United  States.  Not 
onl}-  is  the  decision  in  the  Shreveport  case,  cited  in  notes  216, 
217  and  218,  supra,  in  accord  with  the  Constitution,  any  other 
rule  would  result  in  endless  confusion  and  frequent  in  justice. -^^ 
§  45.  Limitations  on  the  Power  of  States  to  Regulate  In- 
trastate Rates. — When  private  property  is  devoted  to  a  public 
use,  organized  society  has  the  right  to  regulate  the  charges  for 
such  use.  This  right  may  be  exercised  by  or  under  the  author- 
ity of  state  laws  when  the  use  is  within  the  state,  and  subject  ta 
the  further  limitation  that  the  regulation  does  not  extend  to  a 
taking  of  private  property  without  due  process  of  law  or  without 
a  fair  compensation.  This  principle  as  we  have  seen  (Section 
36  supra)  is  old,  but  the  need  in  this  country  for  its  application 
is  comparatively  recent.  The  first  of  the  important  applications 
of  the  principle  was  made  in  Alunn  v.  Illinois  and  the  other 
Granger  cases,-^"  decided  by  the  Supreme  Court  of  the  United 
Sta-tes  in  1877.  Then  follow  ;  the  Railroad  Commission  cases  of 
1886,--!  Dow  r.  Beidelman  of  1888,--  the  Minnesota  case  ^23 
of  1890,  the  Texas  Commission  case  of  1894,---*  the  Turnpike 
case  --^  in  1896,  Smyth  z-.  Ames  -^  in  1898,  the  National  City 

"'"  Corporation     Com.    of    Okla.  "^  Stone    v.    Farmers'    Loan    & 

V.   A.   T.   &   S.   F.   Ry.   Co..   31    I.  Trust    Co.,    116   U.    S.    307,   29    L. 

C.    C.   532;   Trier  z:   C,   St.    P.   M.  Ed.     636,    6     Sup.     Ct.    334,     1191; 

&    O.    Ry.    Co.,    30    I.    C.    C.    352,  Stone  v.  111.  Cent.  R.  Co.,  116  U. 

707;    Rates    on    Beer,    31    I.    C.    C.  S.   347,   29   L.    Ed.  650,   6  Sup.    Ct. 

544;   Freight   Rates   from   Minne-  348,  1191;   Stone  v.  New  Orleans 

sota  Points,  32  I.  C.  C.  361;  Mer-  &   X.    E.    R.    Co.,    116   U.    S.    352, 

chants     Exchange    of    St.     Louis,  29  L.  Ed.  651,  6  Sup.  Ct.  349,  391. 

Mo.  r.  B.  &  O.  R.   Co.,  34   L   C.  "Dow  z\  Beidelman,   125  U.S. 

C.    341.  680,    31    L.    Ed.    841,    8    Sup.    Ct. 

'"'  Munn    V.    Illinois,    94    U.    S.  1028. 

(4    Otto.)     113,     24     L.     Ed.     77;  =^  Chicago,    M.    &    St.    Paul    R. 

Chicago,     B.     &     Q.     R.     Co.     v.  Co.  r.   Minnesota,  134  U.   S.  418, 

Iowa    (v.    Cutts),    94    U.    S.    155,  33   L,    Ed.   970,   10   Sup.   Ct.  462. 

24  L.  Ed.  94;  Peik  v.  Chicago  &  "*  Reagan  v.   Farmers'  Loan  & 

N.    W.    R.    Co.,    94    U.    S.    164,    24  Trust    Co.,    154    U.    S.    362,    38    L. 

L.     Ed.    97;     Chicago,    M.     &    St.  Ed.    1014,    14    Sup.    Ct.    1047. 

P.  R.  Co.  V.  Ackley,  94  U.  S.  179,  "^  Covington  &  L.  Turnpike  R. 

24  L.  Ed.  99;  Winona  &  St.  Paul  Co.    z'.    Sandford,    164   U.    S.    578, 

R.   Co.  V.   Blake,  94  U.   S.   180,  24  41   L.   Ed.   561,   17   Sup.    Ct.   198. 

L.    Ed.    99;    Stone    v.    Wisconsin,  "°  Smythe    v.    Ames,    169    U.    S. 

94  U.   S.   181,  24   L.   Ed.   102.  466,    42    L.    Ed.    S19.    18    Sup.    Ct. 

418. 


45.] 


Affecting  Ixterstate  Commerce. 


// 


case  in  1899,--"  the  Stock  Yard  case  in  1901,--^  the  Water 
Rates  cases  of  1903.--"'  and  the  Water  and  Gas  cases  of  1909.2^*^ 
These  and  other  cases  will  be  found  in  a  note  hereto.-"' ^ 

In  1913,--^-  the  Supreme  Court,  in  a  series  of  cases  involving 


^  San  Diego  Land  &  Town 
Co.  V.  National  City,  174  U.  S. 
739,  43  L.  Ed.  1154,  19  Sup.  Ct. 
804. 

""^  Cotting  V.  Godard,  183  U.  S. 
79,  46  L.  Ed.  92,  22  Sup.  Ct.  30. 

=^Knoxville  Water  Co.  v. 
Knoxville,  189  U.  S.  434.  47  L. 
Ed.  887,  23  Sup.  Ct.  531;  San 
Diego  Land  &  Town  Co.  v. 
Jasper,  189  U.  S.  439,  47  L.  Ed. 
892,   23   Sup.    Ct.   571. 

"^°  Knoxville  v.  Knoxville  Wa- 
ter Co.,  212  U.  S.  1,  53  L.  Ed. 
371,  29  Sup.  Ct.  14S;  Wilcox  v. 
Consolidated  Gas  Co.,  212  U.  S. 
19,  53  L.  Ed.  387,  29  Sup.  Ct.  392. 

=''Budd  V.  New  York.  143  U. 
S.  517,  36  L.  Ed.  247,  4  L  C. 
R.  45,  12  Sup.  Ct.  468;  Brass  v. 
North  Dakota  ex  rel.  Stoeser,  153 
U.  S.  391,  38  L.  Ed.  757,  4  I.  C. 
R.  670,  14  Sup.  Ct.  857.  See  also 
the  following  cases  in  state  and 
federal  courts:  People  v.  -Budd, 
117  N.  Y.  1,  5  L.  R.  A.  599,  22  N. 
E.  670;  Lake  Shore  &  M.  S.  R.  Co. 
V.  Cincinnati,  S.  &  C.  R.  Co.,  30 
Ohio  St.  604;  State  ex  rel.  At- 
torney General  v.  Columbus  Gas- 
light &  Coke  Co.,  34  Ohio  St. 
572,  32  Am.  Rep.  390;  Davis  v. 
State,  68  Ala.  58,  44  Am.  Rep. 
128;  Baker  v.  State,  54  Wis.  368, 
12  N.  W.  12;  Nash  v.  Page,  80 
Ky.  539,  44  Am.  Rep.  490;  Gi- 
rard  Point  Storage  Co.  v.  South- 
walk  Foundry  Co.,  105  Pa.  248; 
Sawye-  v.  Davis,  136  Mass.  239, 
49  Am.  Rep.  27;  Brechbill  v. 
Randall,  102  Ind.  528,  52  Am. 
Rep.  695,  1  N.  E.  362;  Delaware, 
L.  &  W.  R.  Co.  V.  Central  Stock- 


Yard  &  Transit  Co.,  45  N.  J.  Eq. 
30,  6  L.  R.  A.  855,  17  Atl.  146; 
Spring  Valley  Waterworks  v. 
Schottler,  110  U.  S.  347,  28  L. 
Ed.  173,  4  Sup.  Ct.  48;  Railroad 
Commission  Cases,  116  U.  S.  307, 
sub.  nom.  Stone  v.  Farmers' 
Loan  &  Trust  Co.,  29  L.  Ed.  636, 
6  Sup.  Ct.  334,  388,  1191;  Wabash, 
St.  L.  &  P.  R.  Co.  z'.  Illinois,  118 
U.  S.  557,  30  L.  Ed.  244,  1  I.  C. 
R.  31,  7  Sup.  Ct.  4;  Dow  v.  Beid- 
elman,  125  U.  S.  680,  31  L.  Ed. 
841,  2  I.  C.  R.  56,  8  Sup.  Ct.  1028; 
Chicago,  M.  &  St.  P.  R.  Co.  v. 
Minnesota.  134  U.  S.  418,  33  L. 
Ed.  970.  3  I.  C.  R.  209,  10  Sup. 
Ct.  462,  702;  Chicago  &  G.  T.  R. 
Co.  V.  Wellman,  143  U.  S.  339, 
30  L.  Ed.  176,  12  Sup.  Ct.  400; 
Reagan  v.  Farmers'  Loan  &  T. 
Co.,  154  U.  S.  362.  38  L.  Ed.  1014. 
4  I.  C.  R.  560,  14  Sup.  Ct.  1047; 
St.  Louis  &  S.  F.  R.  Co.  V.  Gill, 
156  U.  S.  649.  39  L.  Ed.  567,  15 
Sup.  Ct.  484;  Covington  &  L. 
Turnpike  Road  Co.  v.  Sandford. 
164  U.  S.  578,  41  L.  Ed.  560,  17 
Sup.  Ct.  198;  Smyth  v.  Ames,  169 
U.  S.  466.  42  L.  Ed.  819,  18  Sup. 
Ct.  418;  San  Diego  Land  &  Town 
Co.  V.  National  City,  174  U.  S. 
739,  43  L.  Ed.  1154,  19  Sup.  Ct. 
804;  Chicago,  M.  &  St.  P.  R.  Co. 
V.  Tompkins,  176  U.  S.  167,  44  L. 
Ed.  417.  20  Sup.  Ct.  336;  Atlantic 
C.  L.  R.  Co.  V.  North  Carolina 
Corp.  Com..  206  U.  S.  1.  51  L. 
Ed.  933,  27  Sup.  Ct.  585,  11  Ann. 
Cas.   398. 

"'Minnesota  Rate  Cases,  Simp- 
son V.  Shepard,  230  U.  S.  352,  57 
L.     Ed.     1511,     33     Sup.    Ct.    729; 


78  State  Regulation  [§  46. 

state  made  rates  relating  to  intrastate  transportation,  announced 
principles  which  are  as  important  as  those  in  the  Granger  and 
Railroad  Commission  cases,  supra.  These  principles  are  hut 
the  logical  application  of  prior  decisions  and  Mr.  Justice  Hughes, 
in  writing  the  opinions  of  the  court,  has  ably  and  exhaustively 
discussed  the  question  and  vindicated  the  rights  of  the  states 
to  regulate  rates  of  charges  of  public  carriers  within  their  re- 
spective borders.  In  the  ^Minnesota  case,  the  learned  Justice 
said: 

"If  this  authority  of  the  state  be  restricted,  it  must  be  by 
virtue  of  the  paramount  power  of  Congress  over  interstate  com- 
merce and  its  instruments ;  and,  in  view  of  the  nature  of  the 
subject,  a  limitation  may  not  be  implied  because  of  a  donnant 
federah  power,  that  is,  one  which  has  not  been  exerted,  but  can 
only  be  found  in  the  actual  exercise  of  federal  control  in  such 
measure  as  to  exclude  this  action  by  the  state  which  otherwise 
would  clearly  be  within  its  province." 

This  right  is  in  all  cases  subject  to  constitutional  limitations, 
and  there  is  a  clear  intimation,  as  shown  in  Sec.  6,  supra,  that 
the  federal  government  has  not  exercised  as  yet  all  its  powers 
under  the  commerce  clause  of  the  Constitution. 

§  46.  Property  Basis  for  Returns. — Investors  are  entitled 
to  a  reasonable  return  on  the  fair  value  of  the  property  devoted 
to  the  public  use.  Until  there  shall  be  an  authoritative  determi- 
nation of  the  value  of  railroad  property.  Commissioners  and 
Courts  must  as  best  they  may  arrive  at  this  value. 

In  applying  the  decisions  of  courts  to  the  question,  it  is  neces- 

Missouri  Rate  Cases,  Knott  v.  Indiana  Rate  Cases.  Wood  v. 
C.  B.  &  Q.  R.  Co..  230  U.  S.  474,  Vandalia  R.  Co..  231  U.  S.  1.  58 
57  L.  Ed.  1571,  33  Sup.  Ct.  973;  L.  Ed.  97,  34  Sup.  Ct.  7:  Ken- 
West  Virginia  Cases,  Chesapeake  tucky  Rate  Case,  Louisville  & 
&  O.  Ry.  Co.  V.  Conley,  230  U.  N.  R.  Co.  v.  Garrett,  231  U.  S. 
S.  513,  57  L.  Ed.  1597.  33  Sup.  298,  58  L.  Ed.  229,  34  Sup.  Ct. 
Ct.  985;  Oregon  Cases,  Oregon  48;  Cent,  of  Ga.  R.  Co.  v.  R.  R. 
R.  &  N.  Co.  V.  Campbell.  230  U.  Com.  of  Ala.,  209  Fed.  75,  79: 
S.  525,  57  Fed.  1625,  33  Sup.  Ct.  Chicago  &  X.  W.  Ry.  Co.  v. 
1011,  177  Fed.  318,  180  Fed.  Smith,  210  Fed.  632:  Cent,  of  Ga. 
253;  Southern  Pac.  Co.  v.  Camp-  R.  Co.  v.  Georgia  R.  R.  Com., 
bell,  230  U.  S.  537;  Arkan-  215  Fed.  421.  For  a  continuation 
sas  Cases,  Allen  v.  St.  Louis  I.  of  the  Arkansas  Cases  see  Boyle 
M.  &  S.  Ry.  Co.,  230  U.  S.  553,  v.  St.  Louis  &  S.  F.  Ry.  Co.,  222 
57  L.  Ed.  1625,  33  Sup.   Ct.   1030;  Fed.  539. 


§  46.]  Afffxtixg  Interstate  Commerce.  79 

sary  to  keep  in  mind  the  dilTerent  functions  performed  by  courts 
and  by  quasi-legislative  tribunals.  * 

The  courts  usually  must  determine  the  strictly  legal  question, 
Is  the  rate  under  investigation  "so  unreasonably  low  that  the  car- 
riers are  deprived  of  their  property  without  due  process  of  law 
and  denied  the  equal  protection  of  the  law?"  Minnesota  Rate 
Cases,  supra. 

"The  rate  making  power  is  a  legislative  power  and  necessarily 
implies  a  range  of  legislative  discretion ;  and  the  question  to  be 
determined  by  a  tribunal  to  which  this  power  has  been  dele- 
gated is,  Is  the  rate  just  and  reasonable?     (Id.) 

Obviously  a  rate  may  be  less  than  just  and  reasonable  with- 
out being  confiscatory.  While  a  tribunal  exercising  the 
legislative  function  may  not  make  a  rate  so  low  as  to  be  viola- 
tive of  the  constitutional  restrictions  and  legal  principles  an- 
nounced by  courts  of  binding  authority,  such  tribunal  may  not 
disregard  its  dutv  to  exercise  its  "legislative  discretion,"  the 
power  to  apply  which,  said  Mr.  Justice  ]\Ioody,  "Is  a  delicate 
and  dangerous  function,  and  ought  to  be  exercised  with  a  keen 
sense  of  justice."     Knoxville  v.  Water  Co..  supra. 

"Fair  value"  has  been  defined  as  "the  reasonable  value  of  the 
property  at  the  time,  it  is  being  used  for  the  public."  San  Diego 
Land  Co.  r.  National  City,  supra. 

This,  excepting  the  fact  that  it  fixes  the  time  at  which 
value  is  to  be  found,  is  more  a  restateinent  of  the  question 
than  a  definition  of  the  term ;  "reasonable"  being  as  inexact 
as  "fair." 

In  the  leading  and  much  cited  case  of  Smyth  v.  Ames,  the 
court  had  for  determination  the  legal  question  of  whether  or  not 
a  legislative  act  violated  the  constitutional  rights  of  the  carriers. 
and  the  opinion  of  the  court  must  be  understood  as  being  lim- 
ited by  the  question  involved.  The  court  held  that  the  laiv 
demanded  a  "fair  return"  on  the  fair  value  of  the  propertv  used 
*  :;=  :!:  {qj-  ^|-|g  couvenieuce  of  the  public.  \\'hat  was  the  "fair 
value"  and  what  would  be  a  "fair  return,"  were  mixed  questions 
of  law  and  "legislative  discretion."  The  court  determined  only 
the  legal  question  and  found  that  "the  act.  if  enforced,  would 
have  deprived  each  of  the  railroad  companies  *  "  *  of  the 
just  compensation  secured  to  them  bv  the  Constitution."  fp. 
547.)     In  reaching  this  determination,  however,  the  court  stated 


80  State  Regulation  [§  46. 

rules  which  should  be  cousidered  in  "all  calculations  as  to  the 
reasonableness  of  rates."  (p.  546.)  These  rules  huist  be  fol- 
lowed by  rate  making  bodies.  In  ascertaining  "value"  the  court 
held  that  consideration  must  be  given  to  the  following  facts : 

(1)  "The  original  cost  of  construction." 

(2)  "The  amount  expended  in  permanent  improvements." 

(3)  "The  amount  and  market  value  of  its  Cthe  carrier's)  bonds 

and  stock." 

(4)  "The  present  as  compared  with  the  original  cost  of  con- 

struction." 

(5)  "The   probable   earning   capacity    of   the    property   under 

particular  rates  prescribed  by  statute." 

(6)  "The  sum  required  to  meet  operating  expenses." 

All  these  to  be  "given  such  weight  as  may  be  just  and  right 
in  each  case."     P.  547. 

In  the  Minnesota  Rate  Cases,  supra,  p.  433  of  the  opinion,  the 
"legislative  discretion"  is  distinguished  from  the  judicial  ques- 
tion; has  the  state  "overstepped  the  constitutional  limit?"  While 
the  court  in  that  case  cited  as  correct  "general  principles"  those 
announced  in  Smyth  v.  Ames  fp.  434Y  [Mr.  Justice  Hughes,  who 
delivered  the  opinion  of  the  court,  said:  "The  ascertainment  of 
value  is  not  controlled  by  artificial  rules.  It  is  not  a  matter  of 
formulas,  but  there  must  be  a  reasonable  judgment  having  its 
basis  in  a  proper  consideration  of  all  relevant  facts."  (p.  434.) 
He  then  applied  somewhat  more  restricted  rules  than  those 
stated  in  vSmyth  v.  Ames.  In  so  doing,  however,  he  was  careful 
to  state  that  he  was  considering  "a  judicial  finding"  (p.  451)  ; 
that  the  "judicial  power  to  declare  legislative  action  invalid  upon 
constitutional  grounds  is  to  be  exercised  only  in  clear  cases"  (p. 
452)  ;  and  "that  we  are  concerned  with  a  charge  of  confiscation 
of  property"  fp.  458).  So  the  court  held  that  the  [Minnesota 
rates  had  not  been  proven  to  be  confiscatory,  but  it  was  not  found 
that  such  rates  were  just  and  reasonable. 

In  Pennsylvania  the  courts  have  authority  upon  complaint  to 
determine  whether  or  not  existing  rates  are  reasonable. -^^ 

In  a  Pennsylvania  case  -•"■*  it  was  said :  "The  primary 
basis  of  any  calculation  as  to  the  value  of  a  w'ater  plant  must  be 

-"  Brymer  v.  Butler  Water  Co.,  °'^  Wilkes-Barre  v.  Spring  Brook 

179    Pa.   St.   331,   36  Atl.   249.  Water    Co..     4     Lack.     Pa.    Leg. 

News    367. 


§  47.]  Affecting  Interstate  Commerce.  81 

the  money  actually  invested  by  the  owners.  If  the  earnings  of 
the  company  have  been  used  to  improve  the  property,  it  is  counted 
as  so  much  more  cash  invested.'' 

§  47.  When  Does  a  Rate  Violate  Rights  under  the 
Fourteenth  Amendment? — That  '"prescribing  rates  for  the 
future  is  an  act  legislative,  and  not  judicial,  in  kind"  can  not  be 
disputed, -^^  but  whether  or  not  a  particular  rate  regulation  takes 
property  "without  just  compensation,"  is  at  least  in  part  a  ques- 
tion of  law. 

The  legislative  branch  of  the  government  must  obey  the 
constitution,  and  it  has  long  been  established  by  the  Su- 
preme Court  of  the  United  States  that  when  it  is  called  upon 
to  determine  whether  or  not  an  act  of  the  legislative  branch 
shall  be  enforced,  it  can  and  must  decide  whether  the  passage 
of  such  act  was  authorized  by  the  fundamental  law  of  the  Union. 
What  is  just  compensation  is  a  flexible  term,  equally  honest 
and  ec[ually  competent  men  may  materially  disagree  on  this  sub- 
ject. Should  the  net  income  on  the  investment  be  2,  3,  4,  5,  6, 
or  7  per  cent?  If  the  legislature,  or  a  board  duly  created  and 
acting  in  a  perfectly  legal  way,  fixes  a  particular  amount  as  the 
maximum  income  which  shall  be  earned  by  a  public  carrier,  shall 
the  courts  annul  such  action,  if  in  the  opinion  of  the  particular 
judge  or  judges  trying  the  case,  the  amount  fixed  is  not  a  just 
and  fair  compensation?  That  the  courts  in  a  clear  case  where 
there  can  be  little  or  no  doubt  that  the  compensation  is  inade- 
quate, must  act  under  their  obligation  to  support  and  enforce 
the  Constitution  of  the  United  States,  and  in  such  cases  declare 
the  rate  prescribed  illegal  will  not,  as  has  sometimes  been  inti- 
mated, make  the  Supreme  Court  of  the  United  States  the  su- 
preme legislative  tribunal  in  this  country.  It  must  be  a  clear 
case  to  justify  action  by  the  courts,  but  as  said  by  ]\Ir.  Justice 
Moody  in  Knoxville  ^^'ater  case,  supra: 

"The  courts,  in  clear  cases,  ought  not  to  hesitate  to  arrest  the 
operation  of  a  confiscatory  law,  but  they  ought  to  refrain  from 
interfering  in  cases  of  any  other  kind.  Regulation  of  public 
service  corporations,  which  perform  their  duties  under  condi- 
tions of  necessary  monopoly  will  occur  with  greater  and  greater 
frequency  as  time  goes  on.     It  is  a  delicate  and  dangerous  func- 

"' Louisville  &  N.  R.  Co.  v.  229,  .34  Sup.  Ct.  48,  and  cases 
Garrett,   231   U.   S.  298,  58  L.   Ed.       cited. 


82  State  Regulation  [§  47. 

tion,  and  ought  to  be  exercised  with  a  keen  sense  of  justice  on 
the  part  of  the  regulating  body,  met  by  a  frank  disclosure  on 
the  part  of  the  company  to  be  regulated." 

What  percentage  on  the  amount  invested  in  the  public  use  the 
investors  are  entitled  to  receive  must,  of  course,  depend  upon 
many  considerations.  Some  of  which  are  stated  in  the  Knox- 
ville  \\'ater  case  and  the  Xew  York  Gas  case.  In  the  Knox- 
ville  case,  where  the  proof  indicated  clearly  that  the  earnings, 
after  deducting  two  per  cent  for  depreciation,  would  net  four 
per  cent,  the  court  held  that  confiscation  had  not  been  proved. 
In  the  Gas  case  ^Ir.  Justice  Peckham,  speaking  for  the  court, 
said :  "Taking  all  facts  into  consideration,  we  concur  with  the 
court  below  on  this  question,  and  think  complainant  is  entitled 
to  six  per  cent  on  the  fair  value  of  its  property  devoted  to  the 
public  use."  • 

The  Circuit  Judge,  in  the  ^Minnesota  Rate  Cases, -^^  held  that 
a  "net  income  of  7  per  cent  per  annum  on  the  value  of  a  rail- 
road property  ...  is  not  more  than  the  fair  return  to  which  a 
railroad  conipanv  i?  entitled  under  the  Fourteenth  Amendment  to 
the  Constitution."  The  Supreme  Court  reversed  the  Circuit  Judge, 
on  the  ground  that  confication  had  not  been  shown  but  did  not 
determine  what  was  a  reasonable  rate  of  return. 

In  discussing  telephone  rates,  the  Supreme  Court  declined  to 
express  an  opinion  as  to  whether  or  not  6  per  cent  on  the  in- 
vestment was  confiscatory.-^''' 

In  another  case  where  the  property  of  the  corporation  was 
fixed  at  a  value  higher  than  the  cost  and  a  return  of  6  per  cent 
was  fixed  on  such  value,  the  Supreme  Court  refused  to  set  asi^e 
the  rate  yielding  such  return.  In  this  case,  the  question  of  the 
value  of  the  franchise  was  discussed  and  Mr.  Justice  Holmes 
stated  the  difficulty  of  solving  the  problem  in  this  language.-^^'' 

"An  adjustment  of  this  sort  under  a  power  to  regulate  rates 
has  to  steer  between  Scylla  and  Charybdis.  On  the  one  side  if 
the   franchise  is  taken  to  mean  that  the  most  profitable  return 

^''Shepard     v.     Northern     Pac.  berland  Tel.  &  Tel.  Co..  225  U.  S. 

Ry.    Co.,    1S4    Fed.    7fi5.    reversed,  430,    56    L.    Ed.    1151,    32    Sup.    Ct. 

Simpson    v.    Shepard,    230    U.    S.  741. 

352,   57   L.   Ed.   1511,   33   Sup.    Ct.  -'"  Cedar     Rapids     Gas     Co.     v. 

729.  Cedar    Rapids.   223   U.    S.    655.   56 

="  Louisville,    City    of.    v.    Cum-  L.    Ed.   594.   32   Sup.    Ct.   389. 


§  47.]  Affecting  Interstate  Commerce.  83 

that  could  be  got,  free  from  compensation,  is  protected  by  the 
Fourteenth  Amendment,  then  the  power  to  regulate  is  null.  On 
the  other  hand  if  the  power  to  regulate  withdraws  the  protec- 
tion of  the  Amendment  altogether,  then  the  property  is  nought. 
This  is  not  a  matter  of  economic  theory,  but  of  fair  interpreta- 
tion of  a  bargain.  Neither  extreme  can  have  been  meant.  A 
midway  between  them  must  be  hit."  In  the  Des  Moines  Gas 
case  -^^  the  court  said  : 

"Nor  do  we  think  that  there  was  error  in  refusing  an  injunc- 
tion upon  the  conclusion  reached  that  a  return  of  6  per  cent  per 
annum  on  the  valuation  would  not  be  confiscatory.  This  is  es- 
pecially true  in  view  of  the  fact  that  the  ordinance  was  attacked 
before  there  was  opportunity  to  test  its  result  by  actual  experi- 
ence." 

None  of  these  cases  announces  a  general  rule,  and  it  is  obvious 
that  what  would  be  reasonable  in  one  case  might  be  unjust  in 
another.  A  railroad  which  must  from  its  very  nature  be  more 
or  less  of  a  monopoly  would  not  be  entitled  to  as  large  a  return 
as  a  more  hazardous  business.  All  these  questions  are  primarily 
questions  of  policy  for  the  legislature,  and  it  is  only  when  the 
rate  prescribed  violates  the  constitutional  requirement  that  courts 
may  act. 

In  San  Diego  Land  &  Town  Co.  z'.  National  City,  it  was  said 
that :  240  "What  the  company  is  entitled  to  demand,  in  order  that 
it  may  have  just  compensation,  is  a  fair  return  upon  the  reason- 
able value  of  the  property  at  the  time  it  is  being  used  for  the 
public." 

What  is  a  "fair  return"  is  primarily  a  legislative  question,  and 
Mr.  Justice  Hughes,  in  the  Minnesota  Rate  cases,  supra,  stated 

""Des  Moines  Gas   Co.  v.   City  v.    Consolidated    Gas    Co.,   212   U. 

of    Des    Moines,    238    U.    S.    153,  S.   19,   5.3   L.   Ed.  382,   29   Sup.   Ct. 

59  L.   Ed.  — ,   35   Sup.   Ct.   Sll.  192;    Smyth    v.    Ames,    169    U.    S. 

■'"  San  Dieffo  Land  &  Town  Co.  466,    42    L.    Ed.    819,    18    Sup.    Ct. 

V.    National    City,    174   U.    S.    739,  418.     And   see   Atlantic   C.    L.    R. 

43   L.    Ed.    1154,   19   Sup.    Ct.    804.  Co.     v.      North      Carolina      Corp. 

See     also     San     DieRo     Land     &  Com.,    206    U.    S.    1,    26,    51    Fed. 

Town    Co.    V.    Jasper,    189    U.    S.  933,  27  Sup.  Ct.  585,  when  speak- 

439,    47    L.    Ed.    892.    23    Sup.    Ct.  ing  of  rate  making  the  Chief  Jus- 

571;       Knoxville      v.       Knoxville  tice  referred  to  the  "flexible  limit 

Water    Co.,    212    U.    S.    1,    53    L.  of     judgment    which    belongs     to 

Ed.  371,  29   Sup.  Ct.   148;  Wilcox  the  power  to  fix  rates." 


84  State  Regulation  [§  48. 

the  power  of  the  courts  by  saying:  "We  do  not  sit  as  a  board 
of  revision  to  substitute  our  judgment  for  that  of  the  legisla- 
ture, or  of  the  commission  lawfully  constituted  by  it,  as  to  mat- 
ters within  the  province  of  either." 

The  question  depending  so  largely  upon  the  special  facts  of 
each  case,  it  is  unlikely  that  the  Supreme  Court  will  ever  pre- 
scribe a  hard  and  fast  rule  as  to  the  percentage  of  income  that 
will  constitute  a  "fair  return." 

48.  Rates— Evidence  That  Rate  Is  Confiscatory — Rates 
on  a  Few  Commodities.— It  is  easy  to  say  that  a  railroad  is 
entitled  to  earn  a  fair  return  upon  the  property  devoted  to  the 
business  of  common  carriage,  but  it  is  difficult  to  determine  in  a 
concrete  case  what  is  a  fair  return.  The  cost  of  moving  one 
commodity  can  not  be  definitely  ascertained,  much  of  such  cost 
not  being  capable  of  allocation.  AA'hen  a  rate  on  one  or  a  few 
commodities  is  fixed  by  legislative  act,  and  the  rates  are  at- 
tacked in  court,  the  presumption  is  that  the  rate  is  fair,  and 
in  ordinary  cases  the  presumption  can  not  be  overcome  by  any 
definite  proof,  when  the  rate  is  prescribed  by  a  commission. 

It  would,  therefore,  seem  that  when  the  commission,  after  a 
full  hearing,  and  aided  by  the  long  experience  and  special  train- 
ing of  its  members,  fixes  a  rate  on  one  or  a  few  commodities  that 
represent  in  comparison  a  very  small  part  of  the  traffic  of  the 
carrier,  such  rate  would  be  binding  on  all  courts,  because  no  one 
could  prove  it  did  not  yield  a  just  compensation.  This  state- 
ment has  reference  to  such  orders  as  the  commission  will  issue. 
Of  course,  a  rate  on  even  one  commodity  might  be  so  low  as 
to  be  clearly  illegal.  These  views  are  expressed  by  Mr.  Justice 
Brewer,  in  the  Florida  Phosphate  Rate  Case,-^^  as  follows: 

"The  order  of  the  commission  w^as  not  operative  upon  all  local 
rates,  but  onlv  fixed  the  rate  on  a  single  article,  to  wit,  phosphate. 
There  is  no  evidence  of  the  amount  of  phosphates  carried  lo- 
cally; neither  is  it  shown  how  much  a  change  in  the  rate  of  carry- 
ing them  will  afifect  the  income,  nor  how  much  the  rate  fixed  by 
the  railroads  for  carrying  phosphate  has  been  changed  by  the 
order  of  the  commission.  There  is  testimony  tending  to  show 
the  gross  income  from  all  local   freights  and  the  value  of  the 

="  Atlantic  C.  L.  R.  Co.  v.  Seaboard  A.  R.  Ry.  Co.  v.  Flor- 
Florida,  203  U.  S.  256,  51  L.  Ed.  ida.  203  U.  S.  261.  51  L.  Ed.  175. 
174,    27    Sup.    Ct.    lOS.      See    also       27    Sup.    Ct.    109. 


§  48.]  Affe;cting  Interstate  Commerce.  85 

railroad  property,  and  also  certain  difficulties  in  the  way  of  trans- 
porting phosphates,  owing  to  the  lack  of  facilities  at  the  termi- 
nals. But  there  is  nothing  from  which  we  can  determine  the  cost 
of  such  transportation.  We  are  aware  of  the  difficulty  which 
attends  proof  of  the  cost  of  transporting  a  single  article,  and,  in 
order  to  determine  the  reasonableness  of  a  rate  prescribed,  it 
may  sometimes  be  necessary  to  accept  as  a  basis  the  average 
rate  of  all  transportation  per  ton  per  mile.  We  shall  not  attempt 
to  indicate  to  what  extent  or  in  what  cases  the  inquiry  must  be 
special  and  limited.  It  is  enough  for  the  present  to  hold  that 
there  is  in  the  record  nothing  from  which  a  reasonable  deduc- 
tion can  be  made  as  to  the  cost  of  transportation,  the  amount 
of  phosphates  transported,  or  the  effect  which  the  rate  estab- 
lished by  the  commission  will  have  upon  the  income.  Under 
these  circumstances  it  is  impossible  to  hold  that  there  was  error 
in  the  conclusions  reached  by  the  Supreme  Court  of  the  state 
of  Florida,  and  its  judgment  is  affirmed." 

Notwithstanding  this  presumption,  rates  on  particular  com- 
modities may  be  shown  to  yield  such  a  return  as  amounts  to  con- 
fiscation. The  Supreme  Court  has  said :  -■*-  "W^hile  local  interests 
serve  as  a  motive  for  enforcing  reasonable  rates,  it  would  be  a 
very  different  matter  to  say  that  the  state  may  compel  the  car- 
rier to  maintain  a  rate  upon  a  particular  commodity  that  is  less 
than  reasonable,  or — as  might  equally  be  asserted- — to  carry  gra- 
tuitously, in  order  to  build  up  a  local  enteq^rise.  That  would  be 
to  go  outside  the  carrier's  undertaking,  and  outside  the  field  of 
reasonable  supervision  of  the  conduct  of  its  business,  and  would 
be  equivalent  to  an  appropriation  of  the  property  to  public  uses 
upon  terms  to  which  the  carrier  had  in  no  way  agreed."  This 
principle,  as  was  shown  in  the  same  case,  does  not  deny  the 
right  to  classify  commodities;  making  rates  thereon  according 
to  hazard,  value  of  service  which  results  in  large  part  from  the 
value  of  the  commodity,  and  other  well  known  considerations. 
The  court  said :  "The  legislature  undoubtedly  has  a  wide  range 
of  discretion  in  the  exercise  of  power  to  prescribe  reasonable 
charges,  and  it  is  not  bound  to  fix  uniform  rates  for  all  commod- 
ities, or  to  secure  the  same  percentage  of  profit  on  every  sort  of 

^'^  North.  Pac.  R.  Co.  v.  North  same  effect  see  Norfolk  &  W. 
Dakota,  230  U.  S.  585,  59  L.  Ed.  Ry.  Co.  v.  Conley,  236  U.  S.  005, 
— ,   35    Sup.    Ct.   429;    and    to    the       59  L.  Ed.  — ,  35  Sup.  Ct.  437. 


86  State  Regulation  [§  49. 

business.  There  are  many  factors  to  be  considered — differences 
in  the  articles  transported,  the  care  required,  the  risk  assumed, 
the  value  of  the  service,  and  it  is  obviously  important  that  there 
should  be  reasonable  adjustments  and  classifications."  Rates 
voluntarily  established  by  a  common  carrier  may  be  considered 
in  determining  whether  or  not  the  same  rates  are  reasonable 
when  prescribed  by  a  state  rate-making  body.^"*^ 

§  49.  Same  Subject — Relative  Cost  of  Different  Kinds  of 
Transportation. — The  same  track,  the  same  cars  and,  to  a  large 
extent,  the  same  employees,  are  used  or  engaged  in  both  inter- 
state and  intrastate  commerce,  and  in  passenger  and  freight 
transportation.  When  a  state  prescribes  rates  on  intrastate 
transportation,  and  it  is  sought  to  show  that  such  rates  are  con- 
fiscatory, to  make  proof  thereof  requires  evidence  as  to  the  cost 
of  the  intrastate  movement  as  well  as  of  the  value  of  the  prop- 
erty devoted  thereto.  To  a  certain  extent  this  cost  may  be  al- 
located, but  much  of  the  cost  of  local  or  intrastate  transportation 
relates  to  the  use  of  property  and  the  cost  of  service  which  are 
employed  in  both  kinds  of  transportation. 

The  federal  trial  courts  in  the  various  rate  cases  which  reached 
the  Supreme  Court  in  1913  devoted  much  argument  to  this  ques- 
tion, and  the  witnesses  in  the  cases  expressed  widely  different 
opinions  with  reference  thereto.  All  agreed  that  the  intrastate 
movement  cost  more  than  the  interstate  movement.  Some  placed 
this  excess  cost  as  low  as  fifty  per  cent  and  some  as  high  as 
seven  hundred  per  cent.-"*^  There  is  a  difference  between  the 
cost,- as  related  to  the  receipts  of  passenger  and  freight  business; 
what  this  dift'erence  is,  is  a  fact  about  which  there  are  varying 
opinions.  In  the  Minnesota  Rate  Cases,  at  page  432,  ^Mr.  Justice 
Hughes  speaks  of  "the  extreme  difficulty  and  intricacy  of  the 
calculations  which  must  be  made  in  the  eft'ort  to  establish  a  segre- 
gation of  intrastate  business  for  the  purpose  of  determining  the 
return  to  which  the  carrier  is  properly  entitled  therefrom ;"  and 
in  the  course  of  the  o])inion  in  that  and  the  related  cases  reported 
in  Volumes  230  and  231  of  the  Supreme  Court  Reports,  the 
methods  adopted  by  the  trial  courts  are  rejected  as  unsatis- 
factory, and  the  conclusion  as  well  as  the  true  method  is  indi- 

''' Louisville     &    N.    R.     Co.    v.  ="  Shepard     v.     Northern     Pac. 

Finn,  235  U.  S.  601.  59  L.  Ed.  — ,  Ry.  Co.,  184  Fed.  765,  812,  ct  seq. 
35   Sup.   Ct.   147.     Sec.  102.  post. 


§  49.]  Affecting  Interstate;  Commerce.  87 

cated  by  the  statement  in  the  opinion  at  page  465  of  \'olume  230, 
as  follows : 

"We  are  of  the  opinion  that  on  an  issue  of  this  character  in- 
volving the  constitutional  validity  of  state  action,  general  estimates 
of  the  sort  here  submitted,  with  respect  to  a  subject  so  intricate  and 
important,  should  not  be  accepted  as  adequate  proof  to  sustain  a 
finding  of  confiscation.  While  accounts  have  been  kept  so  as  to 
show  the  relative  cost  of  interstate  and  intrastate  business,  giving 
particulars  of  the  traffic  handled  on  through  and  local  trains, 
and  presenting  data  from  which  such  extra  cost,  as  there  may 
be,  of  intrastate  business  may  be  suitably  determined,  it  would 
appear  to  have  been  not  impracticable  to  have  had  such  accounts 
kept  or  statistics  prepared  at  least  during  test  periods  properly 
selected.  It  may  be  said  that  this  would  have  been  a  very  dif- 
ficult matter,  but  the  company  having  assailed  the  constitution- 
ality of  the  state  acts  and  orders  was  bound  to  establish  its  case, 
and  it  was  not  entitled  to  rest  on  expressions  of  judgment  when 
it  had  it  in  its  power  to  present  accurate  data  which  would  per- 
mit the  court  to  draw  the  right  conclusion."  -^^ 

="' For    cases    relating   to    meth-  187  Fed.  290,  320,  344;  Cedar  Hill 

ods    to    be    adopted    in    determin-  Coal   and    Coke    Co.    r.    Colorado 

ing  the   relative   cost  of   different  &   Southern   R3^   Co.,   16   I.   C.   C. 

kinds  of  transportation  see.  Min-  387.    393;    Gustin   v.   Atchison,   T. 

neapolis  &  St.  L.  R.  Co.  v.  Min-  &   S.    F.    R.   Co.,   8   I.   C.   C.   277; 

nesota,   186  U.   S.  257,  262,   46  L-  Wilcox  v.   Consolidated  Gas  Co., 

Ed.     1151,    22     Sup.     Ct.    900;     St.  212    U.    S.    19,    53    L.    Ed.    382,    29 

Louis  &  S.  F.  R.  Co.  V.  Hadley,  Sup.    Ct.    192,    15   Am.    Cas.   1034; 

168  Fed.  317,  348;  Ames  v.  Union  Atlantic    C.    L.    R.    Co.    v.    North 

Pac.  R.  Co.,  64  Fed.  165;  Chicago,  Carolina      Corp.     Com.,     206     U. 

M.  &  St.  P.  R.  Co.  V.  Tompkins,  S.   1,   51   L.   Ed.   933,  27   Sup.    Ct. 

176   U.    S.   167,   44   L.    Ed.   417,   20  585;     St.    Louis    &    S.    'F.   R.   Co. 

Sup.  Ct.  336;  Smyth  v.  Ames,  169  r.   Gill,   156  U.   S.   649,   665,   39   L. 

U.  S.  466,  42  L.  Ed.  819,   18  Sup.  Ed.  567,  15  Sup.  Ct.  484;  Southern 

Ct.    418;    Chicago,    M.    &    St.    P.  Ry.   Co.  v.  Atlanta   Stove  Works 

R.   Co.  V.   Keyes,   91   Fed.   47,   55;  Co.,    128   Ga.   207,   233,   234,   57    S. 

Re  Arkansas  Rates,  163  Fed.  141;  E.    429;    Wisconsin    M.    &    P.    R. 

Missouri,    K.    &    T.     R.     Co.     v.  Co.  v.  Jacobson,  71  Minn.  519,  7 

Love,     177     Fed.     493,     498,    499;  N.    W.    893.   40    L.    R.   A.    389,   70 

Love  t;.  Atchison,  T.  &  S.  F.  R.  Am.     St.     Ry.     358,     179     U.    S. 

Co.,    185    Fed.    321,    330,    331,    218  287,    302,    45    L.    Ed.    194,    21    Sup. 

U.  S.  675,  220  U.  S.  618;  Shepard  Ct.  115;  State  v.  Missouri  P.  Ry. 

V.  Northern  Pac.  R.  Co.,  184  Fed.  Co.,    76    Kan.    467,    92    Pac.    606; 

765,  810,  812;  Re  Arkansas  Rates,  Pensacola    &   A.    R.    Co.   v.    Flor- 


88 


State  Regulation 


49. 


Seeking  to  conform  to  the  rule  stated  above  in  the  quotation 
from  the  opinion  in  the  ^Minnesota  Rate  cases,  carriers  serving 
the  state  of  Arkansas  have  from  data  carefully  obtained  formu- 
lated rules  which  appear  to  be  more  nearly  accurate  than  any 
previously  published,  and  which  rules  were  adopted  by  the  trial 
court  in  an  opinion  holding  that  the  Arkansas  intrastate  rates 
were  confiscatory.-^'^ 

The  Interstate  Commerce  Commission  requires  carriers  to 
make  a  separation  of  operating  expense  between  freight  and 
passenger  service.-^" 


ida,  25  Fla.  310.  5  So.  S33;  Mor- 
gan's R.  &  S.  Co.  V.  R.  R.  Com- 
mission, 109  La.  247,  33  So.  214; 
People  v.  St.  Louis  A.  &  T.  H. 
R.  Co.,  176  111.  512,  52  X.  E. 
292;  Chicago  L'nion  Traction  Co. 
z:  Chicago.  199  111.  579,  65  X.  E. 
470;  Reagan  z'.  Farmer's  L.  &  T. 
Co.,  154  U.  S.  362,  38  L.  Ed.  1014, 
14  Sup.  Ct.  1047;  San  Diego  Land 
Co.  V.  Xational  City,  174  U.  S. 
739,  43  L.  Ed.  1154,  19  Sup.  Ct. 
804;  Covington  &  L.  Turnpike 
Road  Co.  V.  Sandford,  164  U.  S. 
578,  596,  597,  41  L.  Ed.  560,  17 
Sup.  Ct.  198;  Jerome  Hill  Cotton 
Co.  V.  Missouri,  K.  &  T.  Ry.  Co., 
6  I.  C.  C.  601;  Southern  Pac.  Co. 
V.  Bartine,  170  Fed.  725.  Fol- 
lowing the  suggestion  of  the  Su- 
preme Court  quoted  in  the  text, 
the  Commission  has  prescribed 
rules  relating  to  the  separation 
of  expenses.  Separation  of  Op- 
erating Expenses,  30  I.  C.  C. 
676.  For  cases  construing  the 
powers  of  State  Commissions 
generally,  see,  Steenerson  v. 
Great  N.  Ry.  Co.,  69  Minn.  353, 
375,  376,  67  X.  W.  207;  State  z: 
Chicago,  M.  &  St.  P.  Ry.  Co.,  38 
Minn.  281,  298,  37  X.  W.  782; 
Foreman  v.  Board.  64  Minn.  371, 
67    N.    \V.    207;    State    v.    Young, 


29  Minn.  474,  9  X.  W.  737; 
Southern  Pac.  Co.  v.  R.  R. 
Com.  of  Oregon,  Ore.,  119  Pac. 
727:  Minneapolis,  St.  P.  &  S. 
Ste.  M.  R.  Co.  v.  R.  R.  Com. 
of  Wisconsin,  136  Wis.  146, 
116  X.  W.  905;  Chicago,  R.  I.  & 
P.  Ry.  Co.  V.  Railway  Com.,  85 
Xeb.  818,  824-5,  124  X.  W.  477; 
Spring  Valley  Water  Works  v. 
San  Francisco,  83  Cal.  286,  306, 
22  Pac.  910,  1046;  Jacobson  v. 
Wisconsin  Ry.  Co.,  71  Minn.  519. 
529,  74  X.  W.  893;  40  L.  R.  A. 
389,  70  Am.  St.  358;  Morgan's  L. 
&  T.  R.  &  S.  S.  Co.  V.  R.  R. 
Com.  of  Louisiana,  109  Ga. 
247,  265,  33  So.  214;  In  Re 
.\msterdam,  33  X.  Y.  Supp.  1009; 
People  z:  Board  of  R.  R. 
Com'rs,  53  App.  Div.  61;  Pensa- 
cola  &  A.  R.  Co.  z'.  State,  25 
Fla.  310.  5  So.  833;  Storrs  z: 
Pensacola  Ry.  Co.,  29  Fla.  617, 
11  So.  226;  State  v.  Seaboard  A. 
L.  Ry.  Co.,  48  Fla.  114,  150,  152, 
37    So.    652,    658. 

='"  Boyle  z;.  St.  Louis  &  S.  F. 
R.    Co.,   222   Fed.   539. 

"*'  Separation  of  Operating  Ex- 
penses, 30  I.  C.  C.  676  and  rules 
adopted  bj^  the  Commission 
Tune   15.    1915. 


§  50.]  Affecting  Interstate  Commerce.  89 

§  50.  Testing  a  Rate  by  Use  to  Determine  Whether  or 
Not  It  Is  Confiscatory. — Circuit  Judge  Woods,  in  1881,  first 
applied  the  test  to  a  rate.  AVhat  he  there  said  appHes  with  great 
force  to  a  rate  fixed  by  an  administrative  commission.  He 
said :  248 

"The  officers  of  the  railroad  company  declare  that  the  rates 
fixed  by  the  commission  will  so  reduce  its  income  that  it  will  not 
suffice  to  pay  the  running  expenses  of  the  road  and  the  interest 
on  its  bonded  debt,  leaving  nothing  for  dividends  to  its  stock- 
holders. The  railroad  commissioners  assert  that  their  schedule 
was  framed  to  produce  8  per  cent,  income  on  the  value  of  the 
road  after  paying  cost  of  maintenance  and  running  expenses. 
Which  view  is  the  correct  one,  it  is  impossible  to  decide  from 
the  evidence  submitted.  There  is,  however,  a  conclusive  way, 
and  it  seems  to  me  it  is  the  only  one,  by  which  this  controversy 
can  be  settled,  and  that  is  by  experiment.  A  reduction  of  rail- 
road charges  is  not  always  followed  by  a  reduction  of  either  gross 
or  net  income.  It  can  soon  be  settled  which  is  right — the  rail- 
road company's  officers  or  the  railroad  commission — in  their 
view  of  the  effect  of  the  commission's  tariff  of  rates,  by  allowing 
the  tarifif  to  go  into  operation.  If  it  turns  out  that  the  views  of 
the  railroad  company  are  correct,  and  that  the  schedule  fixed 
by  the  commission  is  too  low  to  afl:'ord  a  fair  return  upon  the 
value  of  the  road,  the  remedy  is  plain ;  for  the  law  makes  it 
the  duty  of  the  commissioners  'from  time  to  time,  and  as  often 
as  circumstances  may  require,  to  change  and  revise  said  sched- 
ules.' " 

This  test  was  followed  by  District  Judges  AlcPherson  and 
Newman  and  commended  by  Circuit  Judge  Shelby  and  by  the 
Interstate  Commerce  Commission, ^^^  and  the  principle  has  been 
applied  by  the  Supreme  Court. -•^*^  The  Supreme  Court,  in  the 
1913  North  Dakota  case,  referred  to  in  note,  -^^  supra,  gave  as  a 

"'Tilley     v.     Railroad      Co.,     5  Ry.    Co.,    19     I.     C.     C.    162;    see 

Fed.    641,    662,    4   Woods    427.  Shepard    v.    Northern     Pac.    Ry. 

^•"'St.    Louis    S.    W.    Ry.    Co.    :■.  Co.,      184      Fed.     765,     807;     Des 

Hadley,    155    Fed.    220;    Cent,    of  Moines    Gas    Case    quoted    supra, 

Ga.    Ry.    Co.    v.    McLandon,    157  sec.   46. 

Fed.  961,  978;  R.  R.  Com.  of  Ala-  ''"Ex    Parte   Young,   209   U.    S. 

bama    v.    Cent,    of    Ga.    Ry.    Co.,  123.    52    L.    Ed.    714,   28    Sup.    Ct. 

170   Fed.   225,   232,   233;    Loftis   V.  441;  Knoxville  v.  Knoxville  Water 

Pullman    Co.,    19    I.     C.    C.    102;  Co.,   212   U.    S.    1,    53   L.   Ed.   37';, 

City  of  Spokane  v.  Northern  Pac.  29   Sup.  Ct.   148;   Wilcox  v.   Con- 


90  State  Regulation  [§  50. 

reason  for  a  test,  "the  great  difficulty  in  the  attempt  to  measure 
the  reasonableness  of  charges  by  reference  to  the  cost  of  trans- 
]  orting  the  particular  class  of  freight  concerned.''  On  the  sec- 
ond appeal  of  this  case  the  result  of  this  test  is  shown. -^^ 

Another  reason  for  the  test  and  why  great  care  should  be  ob- 
served in  enjoining  an  order  fixing  a  rate  is  that  the  shipper  can 
not  be  protected  by  a  bond,  should  the  lower  rate  be  finally  held 
valid.  This  is  clearly  and  unanswerably  shown  by  Circuit  Judge 
Shelby  in  the  Alabama  Rate  case,-^-  where  he  says : 

'Tt  is  argued  that  the  injunction  should  be  issued  because  the 
rights  of  the  defendants  and  all  interested  are  secured  by  bonds. 
It  is  true  that  the  courts  have  held  that  the  fact  that  the  de- 
fendants' rights  may  be  secured  by  bond  is  sometimes  a  sound 
reason,  in  cases  where  the  final  result  is  doubtful,  for  exercising 
judicial  discretion  in  favor  of  granting  the  preliminary  injunc-  . 
tion.  But  that  rule  is  not  always  controlling,  and  clearly  it 
should  not  be  applied  in  cases  where  the  bond  does  not  afford 
adequate  protection.  Here  the  bonds  given  are  intended  to  se- 
cure innumerable  passengers  and  shippers  or  consignees.  It  is 
not  at  all  probable  that  the  claims  of  the  tenth  of  them,  on  breach 
of  the  bonds,  would  ever  be  presented,  or,  if  presented,  would  be 
paid,  and  to  enforce  payment  in  the  courts,  unless  those  injured 
combined  in  their  eft"orts,  would  cost  more  than  the  claim  is 
worth.  Those  familiar  with  the  Tift  case  know  that  the  bond 
proved  ineft'ectual  as  complete  indemnity  in  that  case,  although 
the  parties  sought  to  be  protected  were  large  shippers  of  lumbef. 
Tift  et  al.  v.  Southern  Railway  Company  et  al.  ( C.  C.)  123  Fed. 
789;  Id.,  10  I.  C.  C.  548:  Id.  ( C.  C.)  138  Fed.  753; 
Southern  Railway  Company  et  al.  t'.  Tift  et  al.  (  C.  C.  A.)  148 
Fed.  1021 ;  Id.  206  U.  S.  428,  27  Sup.  Ct.  709;  51  L.  Ed.  1124; 
Tift  et  al.  z'.  Southern  Railway  Company  et  al.  (  C.  C.)  159  Fed. 
555.      Where    the    injunction    is   granted,    the    bonds    should    of 

solidated    Gas    Co..   212   U.    S.   19.  Co.,  225  U.  S.  430,  56  L.  Ed.  1151, 

53      L.      Ed.      382,      29      Sup.      Ct.  32  Sup.  Ct.  741. 

192;    Northern    Pac.    Ry.    Co.    r.  ""' North.   Pac.   R.   Co.  z\   North 

North   Dakota,   216   U.   S.   579.   54  Dakota,  236  U.   S.  585.  59   L.   Ed. 

L.    Ed.    624,    30    Sup.    Ct.    423,    af-  — .    35    Sup.    Ct.    429. 

firming   North    Dakota   v.    North-  ''"  R.    R.    Com.    of    .Alabama    v. 

ern  Pac.  Ry.  Co.,  17  N.  Dak.  223,  Cent,    of    Ga.    Ry.    Co..    170    Fed. 

116    N.    W.    92:    Louisville    N.    R.  225.   232,  233. 

Co.  7'.  &  Cumberland  Tel.   &  Tel. 


§  51.]  Affecting  Interstate  Commerce.  91 

course,  be  required,  but  the  court  can  not  safely  exercise  its 
discretion  upon  the  theory  that  the  bond  in  a  case  like  this  gives 
complete  indemnity." 

The  fact  that  the  railroad  has  voluntarily  applied  the  test  will 
not  estop  it  from  enjoining  the  rate  where  the  test  shows  con- 
fiscation.-^""^ 

§  51.  Issuance  of  Stocks  and  Bonds. — Because  unfaithful 
financiers  have  caused  to  be  issued  stocks  and  bonds  of  public 
service  corporations  without  adequate  security  and  sometimes 
with  the  intention  of  using  the  proceeds  for  personal  rather  than 
corporate  purposes,  and  because  the  amount  of  the  corporate  se- 
curities of  such  corporations  is  a  fact  to  be  considered  in  de- 
termining rates  to  be  charged,  a  number  of  the  states  have  passed 
laws  regulating  the  issuance  of  stocks  and  bonds.  Some  of  the 
reasons  for  such  statutes  are  given  by  the  Court  of  Appeals  of 
Maryland  in  this  language :  ~^^ 

"That  issues  of  stocks  and  bonds  have  been  made  fraudu- 
lently and  palmed  off  on  a  credulous  public  to  their  ultimate 
serious  loss  is  matter  of  common  knowledge.  Facts  in  relation 
to  such  issues,  especially  with  regard  to  local  public  utilities, 
have  been  difficult,  if  not  impossible,  to  obtain,  leaving  it  to  the 
stimulated  imagination  of  some  broker  or  syndicate  who,  actu- 
ated by  a  heavy  commission  to  be  realized  by  creating  a  market 
until  such  stock  or  bonds  could  be  unloaded,  have  reaped  a  re> 
ward  in  dollars  and  cents  at  the  cost  of  those  who  were  induced 
to  give  full  faith  and  credit  to  their  representations.  The  legis- 
latures of  many  states  have  therefore,  through  the  media  of  pub- 
lic service  commissions,  seen  fit  to  establish  a  quasi  guardian- 
ship over  prospective  investors." 

These  laws  are  valid  in  so  far  as  they  restrict  the  issuance  of 
corporate  securities  to  purposes  authorized  by  the  law  of  the 
corporation,  and  in  so  far  as  they  restrict  the  issuance  of  such 
securities  to  the  proper  corporate  purposes;  but  such  laws  do  not 
empower  the  states  or  state  commissions  to  assume  the  manage- 
ment of  the  business  of  the  corporation  to  the  exclusion  of  its  di- 
rectors.    Such  legislation,  as  was  said  by  the  Court  of  Appeals  of 


"'  Love    V.    Atchison,    T.    &    S.  '"  Laird   v.   Baltimore   &  O.   R. 

F.    Ry.    Co.,    185    Fed.   321,    107    C.        Co.,  88  Atl.  348,  350,  121  Md.  193. 
C.  A.  403,  and  note  251,  suf^ra. 


92  State  Regulation  [§  52. 

New  York,  was  not  -''^  "designed  to  make  the  commissioners  the 
financial  managers  of  the  corporation,  or  that  it  empowered  them 
to  substitute  their  judgment  for  that  of  the  board  of  directors 
or  stockholders  of  the  corporation  as  to  the  wisdom  of  a  trans- 
action, but  that  it  was  designed  to  make  the  commissioners  the 
guardians  of  the  public  by  enabling  them  to  prevent  the  issue  of 
stock  and  bonds  for  other  than  the  statutory  purposes." 

No  state  can  regulate  or  prohibit  the  issuance  of  stock  and 
bonds  by  an  interstate  railroad,  when  the  stocks  and  bonds  are 
issued  against  lines  extending  beyond  the  limits  of  the  state. 
The  power  of  the  state  being  limited  to  bonds  and  stocks  on 
property  situated  in  the  state.  It  would  seem,  however,  that 
even  as  to  these,  a  state  might  require  the  interstate  railroad  to 
give  information  as  to  such  issue. -■'''^ 

Acting  on  this  principle  and  in  accord  with  an  able  and  ex- 
haustive opinion  of  its  special  attorney,  the  Railroad  Commis- 
sion of  Georgia  refused  to  assume  jurisdiction  of  the  question  of 
the  issuance  of  bonds  by  the  Atlantic  Coast  Line  Railroad  Com- 
pany on  its  interstate  lines. -•^' 

§  52.  Long  and  Short  Haul. — The  law  of  the  state  of  Ken- 
tucky provided  that  it  shall  be  unlawful  for  any  person  or  cor- 
poration owning  or  operating  a  railroad  in  the  state  to  charge 
or  receive  any  greater  compensation  in  the  aggregate  for  the 
transportation  of  passengers  or  of  property  of  like  kind,  under 
substantially  similar  circumstances  and  conditions,  for  a  shorter 
than  for  a  longer  distance,  over  the  same  line,  in  the  same  di- 
rection, the  shorter  being  included  in  the  longer  distance. 

The  Kentucky  court  -•'''*  having  affirmed  a  judgment  against  the 
Louisville  &  Nashville  Railroad  Company  for  a  violation  of  that 
law,  an  appeal  was  taken  to  the  Supreme  Court  of  the  Laiited 
States,  where  the  decision  of  the  Kentucky  court  was  affirmed. -•'^'^ 
In  this  case  both  the  long  and  the  short  haul  were  within  the 
state  of  Kentucky.  In  holding  that  the  Kentucky  law  did  not  il- 
legally affect  interstate  commerce,  the  court  said : 

''"^  People    ex    rel.    Delaware  &          ""^  Louisville    &    X.    R.    Co.    v. 

H.    Co.   V.   Stevens,   197   N.  Y.  1.       Kentucky,  21  Ky.   Law  Rep.  232. 

90  N.  E.  60.  51    S.   W.    164,    1012,    106    Ky.   633. 

''"Laird   V.   Baltimore    &   O.  R.-         ===' Louisville     &    N.    R.     Co.  v. 

Co..   88   Atl.   .348.    121    Md.    193.  Kentucky,    183    U.    S.    503,    46    L- 

'"'Report   of   Railroad   Com.  of       Ed.  298,  22  Sup.   Ct.  95.' 
Ga.   1912,  p.  222.  et  seq. 


§  52.]  Affecting  Interstate  Commerce.  93 

"It  is  plain  that  the  provision  in  question  does  not  in  terms 
embrace  the  case  of  interstate  traffic.  It  is  restricted  in  its  reg- 
ulation to  those  who  own  or  operate  a  railroad  within  the  state, 
and  the  long  and  short  distances  mentioned  are  evidently  dis- 
tances upon  the  railroad  line  within  the  state.  The  particular 
case  before  us  is  one  involving  only  the  transportation  of  coal 
from  one  point  in  the  state  of  Kentucky  to  another  by  a  cor- 
poration of  that  state. 

"It  may  be  that  the  enforcement  of  the  state  regulation  for- 
bidding discrimination  in  rates  in  the  case  of  articles  of  a  like 
kind  carried  for  different  distances  over  the  same  line  may  some- 
what affect  commerce  generally;  but  we  have  frequently  held 
that  such  a  result  is  too  remote  and  indirect  to  be  regarded  as 
an  interference  with  interstate  commerce ;  that  the  interference 
with  the  commerce  power  of  the  general  government,  to  be  un- 
lawful, must  be  direct,  and  not  the  merely  incidental  eft'ect  of 
enforcing  the  police  powers  of  a  state." 

In  another  case  where  the  state  court  held  that  the  law  ap- 
plied where  the  long  haul  was  interstate  commerce,  the  Supreme 
Court  reversed  the  state  court  and  held  that  the  Kentucky  law 
so  construed  was  invalid.  The  court,  Air.  Justice  Peckham  de- 
livering the  opinion  (and  Mr.  Justice  Brevier  and  ]\Ir.  Justice 
Gray,  dissenting),  said  :  -"" 

"Congress  does  not  directly  or  indirectly  interfere  with  local 
rates  by  adopting  their  sum  as  the  interstate  rate. 

"In  the  case  at  bar  the  state  claims  only  to  regulate  its  local 
rates  by  the  standard  of  the  interstate  rate,  and  says  the 
former  shall  be  no  higher  than  the  latter,  but  the  direct  effect 
of  that  provision  is,  as  we  have  seen,  to  regulate  the  interstate 
rate,  for  to  do  any  interstate  business  at  the  local  rate  is  im- 
possible, and  if  so,  it  must  give  up  its  interstate  business  or  else 
reduce  the  rate  in  proportion.  That  very  result  is  a  hindrance 
to,  an  interference  with,  and  a  regulation  of,  commerce  between 
the  states,  carried  on,  though  it  may  be,  by  only  a  single  com- 
pany." 

""'  Louisville  &  N.  R.  Co.  v.  Eu-  90    Am.     St.     Rep.    236,     183     U. 

bank,  184  U.  S.  27,  46  L.   Ed.  416.  S.  503,  46  L.  Ed.  298,  22   Sup.   Ct. 

22    Sup.    Ct.   277.      See    Louisville  95;  Louisville  &  N.  R.  Co.  v.  Gar- 

&    N.    R.    Co.    V.    Com.    of    Ky..  rett.  231  U.  S.  298,  58  L.  Ed.  229, 

106    Ky,   633.   51    S.   W.    164,    1012,  34  Sup.   Ct.  48,   51. 


94  Stati-:  Regulation  [§  53. 

In  the  Minnesota  Rate  Cases, -'"'^  at  pages  428  and  429,  the 
Supreme  Court  reviewed  the  Kentucky  decisions  and  held  that 
the  tirst  case  was  not  aiTected  by  the  later  or  Eubanks  case.  The 
review  of  the  two  decisions  concludes  with  this  statement: 

"The  authority  of  the  former  decision  upholding  the  state 
law,  as  applied  to  places  all  of  which  were  within  the  state,  was 
in  no  way  impaired  and  the  court  fully  recognized  the  power  of 
the  state  to  prescribe  maximum  charges  for  intrastate  traffic  al- 
though carried  over  an  interstate  road  to  points  on  the  state  line." 

§  53.  Ferries, — The  Supreme  Court  quotes  as  a  definition  of 
an  ordinary  ferry  the  following :  -^'- 

"A  ferry  is  a  continuation  of  the  highw^ay  from  one  side  of  the 
water  over  which  it  passes  to  the  other,  and  is  for  transportation 
of  passengers  or  of  travellers  with  their  teams  and  vehicles  and 
such  other  property  as  they  may  carry  or  have  with  them." 

At  page  468  the  opinion  distinguishes  such  a  ferry  from 
one  used  by  a  railroad  as  a  means  of  transporting  cars,  passen- 
gers and  freight.  Whatever  doubt  there  may  have  been  on  the 
subject  of  the  right  of  regulation  by  a  state  of  a  railroad  ferry 
across  a  stream  which  is  the  boundary  between  two  states,  has 
been  set  at  rest  by  a  recent  decision  of  the  Supreme  Court.  In 
this  decision  the  court  quotes  the  definition  of  "railroad"  con- 
tained in  the  Act  to  Regulate  Commerce, -^'^  and  says :  ^c^ 

"The  inclusion  of  railroad  ferries  within  the  text  is  so  certain 


""^  Simpson,    et   al.,    R.    R.    Com.  Xew     England     Transp.    Co.,     14 

of   Minnesota  v.   Shepard.   230  U.  Blatch.  159.  Fed.  Cas.  10197. 

S.  352,  57  L.  Ed.  1511,  33  Snp.  Ct.  ""''Post,  sec.   337. 

729.      See   also   Chicago,   B.   &   Q.  ='-^  New  York   Cent.   &  H.   R.  R. 

R.   Co.  V.  Anderson,  72   Neb.  58G,  Co.     f.    Board,    etc.,    of     Hudson 

101    N.   W.    1019.      For   a   full   dis-  County,    227    U.    S.    248,    263,    264, 

cussion    of    the    general    subject  57    L.    Ed.    499,    33    Sup.    Ct.    269, 

and  of  discrimination   in   general.  reversing    same    styled    case,    76 

see    McGrew    t'.    Missouri     Pac.  N.  J.  Law  664.  74  Atl.  954.     This 

R3-.   Co.,  230   Mo.   496,   132   S.   W.  case   and   the   St.   Clair   case,  note 
1076.                                                            ■    262,     supra,     cites     and     discusses 

■"'St.  Clair  County  v.  Interstate  man}^    authorities.      To    the    same 

Transp.    Co..    192   U.    S.   454,    466.  efife't    see    Port    Richmond    &    B. 

48    L.    Ed.    518,    24    Sup.    Ct.    300.  P.   F.    Co.   :•.    County   of   Hudson, 

citing     Mayor    of     New    York     :•.  234  U.   S.  317,  58   L.   Ed.   1330.  34 

Starin,  106  N.  Y.  1,  12  N.  E.  631;  Sup.      Ct.     821:     reversing     same 

Brodnax'f.    Bake,   94    N.    C.    675;  styled    case,    82    N.    T.    L.    536,    82 

see   also   Mavor   of   New   York   v.  Atl.   729. 


§  53.]  Affecting  Interstate  Commerce.  95 

and  so  direct  as  to  re(|uire  nothing  but  a  consideration  of  the 
text  itself.  Indeed,  this  inevitable  conclusion  is  not  disputed  in 
the  argument  for  the  defendant  in  error,  but  it  is  insisted  that  as 
the  text  only  embraces  railroad  ferries  and  the  ordinances  were 
expressly  decided  by  the  court  below  only  to  apply  to  persons 
other  than  railroad  passengers,  therefore  the  action  by  Congress 
does  not  extend  to  the  subject  embraced  by  the  ordinances. 
But  as  all  the  business  of  the  ferries  between  the  two  states  was 
interstate  commerce  within  the  power  of  Congress  to  control  and 
subject  in  any  event  to  regulation  by  the  state  as  long  only  as  no 
action  was  taken  by  Congress,  the  result  of  the  action  by  Con- 
gress leaves  the  subject,  that  is,  the  interstate  commerce  carried 
on  by  means  of  the  ferries,  free  from  control  by  the  state.  We 
think  the  argument  by  which  it  is  sought  to  limit  the  operation  of 
the  act  of  Congress  to  certain  elements  only  of  the  interstate 
commerce  embraced  in  the  business  of  ferriage  from  state  to 
state  is  wanting  in  merit.  In  the  absence  of  an  express  exclusion 
of  some  of  the  elements  of  interstate  commerce  entering  into  the 
ferriage,  the  assertion  of  power  on  the  part  of  Congress  must 
be  treated  as  being  coterminous  with  the  authority  over  the 
subject  as  to  which  the  purpose  of  Congress  to  take  control  was 
manifested." 

\\'hile  the  language  above  was  used  with  reference  to  a  rail- 
road ferry,  it  would  seem  to  be  broad  enough  to  include  an  or- 
dinary ferry,  and  the  law  is  that  states  have  no  greater  power  to 
regulate  a  ferry  between  two  states  than  they  have  to  regulate 
an   interstate  railroad.'-'"'-'^     Nor  can  a  state  close  navigation. ^''"'^ 


=''See  Gloucester  Ferry  Co.  v.  51  L.  Ed.  523,  27  Sup.  Ct.  367; 
Penna.,  114  U.  S.  196,  29  L.  Ed.  ManiRault  v.  S.  M.  Word  &  Co., 
158,  5  Sup.  Ct.  826;  Covington  123  Fed.  707,  affirmed,  Manigault 
Bridge  Co.  v.  Kentucky,  154  U.  t-.  Springs,  199  U.  S.  473,  50  L. 
S.  204,  38  L.  Ed.  962,  14  Sup.  Ct.  Ed.  274,  26  Sup.  Ct.  227. 
1087;  St.  Clair  County  v.  In-  "■'Levy  v.  United  States,  92 
terstate  Transp.  Co.,  192  U.  S.  Fed.  344,  34  C.  C.  A.  392,  re- 
454,  48  L.  Ed.  518,  24  Sup.  Ct.  -"-ersed,  Levy  v.  L'nited  States, 
300;  Lake  Shore  &  M.  S.  Ry.  177  U.  S.  621.  44  L.  Ed.  914,  20 
Co.  V.  Ohio.  165  U.  S.  365.  41  L.  Su;).  Ct.  797.  holding  that  the 
Ed.  747,  17  Sup.  Ct.  357;  United  evidence  was  insufficient  to  show 
States  V.  Union  Bridge  Co.,  143  that  the  waters  were  used  in  in- 
Fed.   377,  affirmed.  204  L^.   S.  364,  terstate    commerce. 


96  State  Regulation  [§  54. 

Fish,  sponges,  oysters,  etc.,  in  local  waters  belong  to  the  states 
and  are  subject  to  their  control.-*''" 

A  municipality,  and  by  parity  of  reasoning  a  state,  can  not 
lawfully  require  a  Canadian  corporation  operating  a  ferry  over 
a  boundary  stream  lying  between  Canada  and  the  state  in  which 
the  municipality  is  located  to  take  out  a  license  and  pay  a  fee  as 
a  condition  precedent  to  receiving  and  landing  passengers  and 
property  in  said  municipality.-'^'^  The  rates  for  ferriage  between 
two  ports  in  the  same  state  may  be  regulated  by  the  state,  not- 
withstanding the  transportation  is  over  a  course  which  traverses 
the  open  sea.^^^ 

§  54.  Bridges. — Bridges  across  a  stream  which  is  a  boundary 
between  two  states  accommodate  interstate  commerce,  and  like 
ferries,  are  included  in  the  definition  of  railroads  in  the  Act 
to  Regulate  Commerce.-'"  The  rules  of  law  stated  in  the  pre- 
ceding section  as  applicable  to  ferries,  apply  equally  to  such 
bridges.  There  are,  however,  bridges  across  navigable  streams 
which  are  wholly  within  the  boundaries  of  a  state.  As  to  these. 
Air.  Justice  Field  said  that  the  states  had  full  power -'^ 
"to  regulate  within  their  limits  matters  of  internal  police,  which 
embraces  among  other  things  the  construction,  repair  and  main- 
tenance of  roads  and  bridges,  and  the  establishment  of  ferries; 
that  the  states  are  more  likely  to  appreciate  the  importance  of 
these  means  of  internal  communication  and  to  provide  for  their 
proper  management,  than  a  government  at  a  distance;  and  that, 
as  to  bridges  over  navigable  streams,  their  power  is  subordinate 
to  that  of  Congress,  as  an  act  of  the  latter  body  is,  by  the  Con- 
stitution, made  the  sujireme  law  of  the  land  ;  but  that  until  Con- 

-"'The  Abby  Dodge,  223   U.   S.  also    Wilson   z:    Black-bird    Creek 

166,    56    L.    Ed.    390,    32    Sup.    Ct.  Marsh  Co.,  2  Pet.,  27  U.  S.  245,  7 

310,  and  cases  cited  and  discussed  L.      Ed.      412;      Pennsylvania      x'. 

:n    the    opinion.  Wheeling    Bridge    Co.,    13    How., 

""Sault    Ste.    Marie    v.    Interna-  54  U.   S.  518,  564,   14   L.   Ed.  249; 

tional  Transit  Co..  234  U.  S.  333,  Oilman    :■     Philadelphia,    3    Wall, 

58  L.  Ed.  1337,  34  Sup.  Ct.  826.  70  U.  S.  713,  18  L.  Ed.  96;  Pound 
-'"Wilmington  Trans.   Co.  v.  R.  z:  Turck,  95  U.  S.  459,  24  L.   Ed. 

R.   Com.   of  Calif.,  236  U.   S.   151,  525;     Escanaba    Co.    v.    Chicago, 

59  L.  Ed.  — ,  35  Sup.  Ct.  276.  107  U.  S.  678,  27  L.  Ed.  442,  2 
"'"Note  263,  supra.  Sup.  Ct.  185;  Miller  z:  Mayor  of 
-'■^  Cardwell  v.  American  Bridge  New    York,   109   U.   S.   385,   27   L. 

Co.,    113    U.    S.    205,    208.    209,    23        Ed.  971,   3    Sup.   Ct.  270. 
L.    Ed.    959,    5    Sup.    Ct.    423.      See 


§  54.]    •  Affecting  Interstate  Commerce.  97 

gress  acts  on  the  subject  their  power  is  plenary.  When  Congress 
acts  directly  with  reference  to  the  bridges  authorized  by  the 
state,  its  will  must  control  so  far  as  may  be  necessary  to  secure 
the  free  navigation  of  the  streams." 

The  same  principle  is  announced  by  Air.  Justice  Hughes  in  the 
Minnesota  Rate  Cases,  as  follows  :-"'- 

"A  state  is  entitled  to  protect  its  coasts,  to  improve  its  harbors, 
l^ays  and  streams,  and  to  construct  dams  and  bridges  across  nav- 
igable rivers  within  its  limits,  unless  there  is  conflict  with  some 
act  of  Congress.  Plainly,  in  the  case  of  dams  and  bridges,  in- 
terference with  the  accustomed  right  of  navigation  may  result. 
But  this  exercise  of  the  important  power  to  provide  local  im- 
provements has  not  been  regarded  as  constituting  such  a  direct 
burden  upon  intercourse  or  interchange  of  traffic  as  to  be  repug- 
nant to  the  federal  authority  in  its  dormant  state." 

Where,  under  authority  of  a  state,  a  bridge  has  been  erected 
over  a  navigable  stream  within  the  state,  the  owners  having 
erected  such  bridge  with  full  knowledge  of  the  paramount  au- 
thority of  Congress  can  not  complain  when,  under  authority  of 
the  federal  government,  such  bridge  is  required  to  be  removed 
as   an   obstruction   to  navigation.-'-^      Xor   is   this   rule   different 

'"  Simpson    v.    Shepard.    230    U.  den,    9    Wheat.    22    U.    S.    1,    6    L. 

S.     352,    403,     58     L.     Ed.    151,   33  Ed.   23;   Gibson  v.  United   States, 

Sup.    Ct.  729,   citing  authorities.  166   U.    S.   269,   41   L.    Ed.   996,    17 

^"  Union    Bridge    Co.   v.   United  Sup.  Ct.  578;  Scranton  z;.  Wheeler, 

States,    204   U.    S.    364,    51    L.    Ed.  179    U.    S.    141,   45    L.    Ed.    126,   21 

523,   27   Sup.   Ct.   367,   followed   in  Sup.    Ct.    48;    New    Orleans    Gas 

Monongahela       Bridge       Co.       v.  Light  Co.  v.  Drainage   Com.,   197 

United    States,    216   U.    S.    177,    54  U.   S.  453,  49   L.   Ed.  831,  25   Sup. 

L.  Ed.  435.  30  Sup.  Ct.  306.     See  Ct.  471;  Chicago,  B.  &  Q.  R.  Co. 

also,  The  Brig  Aurora,  7  Cranch,  v,    Drainage     Com'rs,    200    U.    S. 

11  U.  S.  382,  3  L.   Ed.  378;  Way-  561,    50    L.    Ed.    590,    26    Sup.    Ct. 

man    v.    Southard,    10    Wheat.    23  341;  West  Chicago  Street  R.  Co. 

U.    S.    1,    6    L.    Ed.    253;    Field   v.  v.    Chicago,   201   U.   S.   506,   50   L. 

Clark,    143    U.    S.    649,    36    L.    Ed.  Ed.   845,   26    Sup.    Ct.   518;    Dugan 

294,   12   Sup.   Ct.  495;   C.   W.,   etc.,  v.    Bridge    Co.,    27    Pa.    St.    303; 

R.  Co.  V.  Com'rs,  1  Ohio  St.  77;  Cooke  v.  Boston  &  L.  R.  Co.,  133 

Moers  v.  City  of  Reading,  21  Pa.  Mass.    185;    Lake    Erie    &   W.    R. 

St.    188;    Locke's    Appeal,    72    Pa.  Co.    v.    Cluggish,    143    Jnd.    347; 

St.   491,   498;    Buttfield   v.    Strana-  Lake  Erie  &  W.  R.  Co.  v.  Smith, 

han,  192  U.  S.  470,  48  L.  Ed.  525,  61   Fed.   885;   State   of   Indiana   v. 

24   Sup.   Ct.  349;   Gibbons  v.   Og-  Lake  Erie  &  W.  R.  Co.,  83  Fed. 

—4 


98  State  Regulation  ■     [§55. 

when  the  bridge  has  been  erected  under  authority  of  an  Act  of 
Congress.-'''^ 

A  state  court  may  not  compel  the  removal  of  a  bridge  over  a 
navigable  stream,  such  bridge  being  used  in  interstate  com- 
merce.-"^ 

§  55.  Regulating  Charges  for  Transportation  by  Water. 
— The  Act  to  Regulate  Commerce  applies,-'*^  "to  any  common 
carrier  or  carriers  engaged  in  the  transportation  of  passengers 
or  property  wholly  by  railroad  (or  partly  by  railroad  and  partly 
by  water  when  both  are  used  under  a  common  control,  manage- 
ment, or  arrangement  for  a  continuous  carriage  or  shipment,)" 
and  since  the  enactment  of  the  Panama  Canal  Act  to  interstate 
transportation  by  water. 

There  is  a  transportation  service  which  is  performed  by  vessels 
over  inland,  waters  wholly  within  one  state.  When  this  trans- 
portation service  is  open  to  all  who  apply  therefor,  that  those 
engaged  therein  are  common  carriers  is  too  well  settled  to  justify 
extensive  citation  of  authorities.-""  Being  common  carriers,  the 
rates  on  intrastate  transportation  to  be  charged  by  them  are  sub- 
ject to  the  same  regulation  by  the  states  as  rates  for  transporta- 
tion by  railroads. 

The  Constitution  of  the  United  States  extends  the  judicial 
power  of  the  courts  of  the  United  States  "to  all  cases  of  admir- 
alty  and   maritime   jurisdiction,"  -^^    and    boats   plying  between 

284,  287;   St.   L.   &   I.   M.   &   S.   R.  233    U.    S.    75,    58    L.    Ed.    837,    34 

Co.  V.  Taylor,  210  U.  S.  281,  52  L.  Sup.  Ct.  564. 

Ed.  1061,  28  Sup.  Ct.  610;  North-  '''Sec.  335,  post,  and  the  power 

ern    Pac.    R.    Co.    v.    Duluth.    208  granted     by     the     Panama     Act, 

U.  S.  583,   52  L.   Ed.  630,  28   Sup.  post,   377. 

Ct.    341.  '"  Moses     v.     Bettes,    4     Heisk. 

'"Hannibal  Bridge'  Co.  v.  (Tenn.)  661,  13  Am.  Rep.  1;  Pro- 
United  States,  221  U.  S.  194,  55  peller  Niagara  v.  Cordes,  21 
L.  Ed.  699,  31  Sup.  Ct.  603.  The  How.  62  U.  S.  7,  22,  23,  16  L.  Ed. 
rule  as  to  bridges  would  applj^  41;  Brown  r.  Clayton,  12  Ga.  564. 
to  dams,  Wilson  v.  Black  Bird  In  Hale  v.  New  Jersey  Naviga- 
Creek  Marsh  Co.,  2  Pet..  27  U.  S.  tion  Co.,  15  Conn.  539,  39  Am. 
245,  7  L.  Ed.  412;  Pound  v.  Dec.  398.  citing  Judge  Kent. 
Turck,  95  U.  S.  459,  24  L.  Ed.  the  opinion  classes  inland  car- 
525.  riers  as  "carriers  by  land  or  wa- 

""  Kansas     City     S.     R.     Co.    v.  ter." 

K.  W.   Valley  Drainage  District,  ^'Art.  Ill,  Sec.  2.  Constitution 

United  States. 


§  55.] 


Affecting  Interstate  Commerce. 


99 


points  in  the  same  state  are  within  this  jurisdiction.^^^  This, 
however,  does  not  exchide  the  states  from  regulating  rates  on 
intrastate  transportation,  ahhough  the  transportation  may  be  by 
water.-*'^      There    is    nothing-    in    the    decision    in    the    Daniel 


="The  Belfast.  7  Wall.,  74  U. 
S.  624,  19  L.  Ed.  266;  Aldrich  v. 
.Etna  Co.,  8  Wall.,  75  U.  S.  491, 
19  L.  Ed.  473;  Tucker  on  the 
Constitution,    Sec.    370. 

■*°  State  legislation  regulating 
or  prescribing  methods  of  regu- 
lating common  carriers  show  in 
many  states  a  legislative  con- 
struction supporting  the  text. 
As  some  states  have  no  naviga- 
ble streams,  their  failure  to  refer 
to  water  transportation  is  only 
natural.  Alabama:  carrier  in- 
cludes doing  business  "over  any 
navigable  stream  in  whole  or  in 
part  within  the  state  or  partly 
by  rail  and  partly  by  water;  but 
nothing  in  this  article  shall  be 
construed  as  a  regulation  of  or 
interference  with  interstate  com- 
merce;" Code  1907,  sec.  5648. 
Arizona  laws  make  no  reference 
to  water  carriers;  Sessions  Laws 
1912,  chap.  90.  The  same  is  true 
in  Arkansas:  Kirby's  Digest 
J 904,  sees.  6002,  6280.  Califor- 
nia: "canal"  companies  are  men- 
tioned, and  the  Act  includes 
"every  common  carrier,"  and 
common  carrier  comprehends 
owners  of  "any  vessels  regularly 
engaged  in  the  transportation  of 
persons  or  property  for  compen- 
sation upon  the  waters  of  this 
state  or  upon  the  high  seas,  over 
regular  routes  between  points 
in  this  state;"  Stat.  1911,  1st  Ex. 
Sess.,  chap.  14.  Colorado :  no 
mention  of  water  carriers;  Laws 
1910,  Sp.  Sess.,  chap.  5.  Con- 
necticut:    includes     all     "common 


carriers"  though  no  specific  ref- 
erence is  made  to  water  carriers; 
Acts  1911,  chap.  128.  Delaware 
has  no  commission.  Florida: 
includes  in  the  definition  of  com- 
mon carriers,  "all  companies  and 
any  person  or  persons  owning 
and  operating  steamships  en- 
gaged in  the  transportation  of 
freight  or  passengers  from  and 
to  ports  within  this  state;  all 
companies  and  any  person  or 
persons  owning  and  operating 
steamboats  used  in  the  transpor- 
tation of  freight  or  passengers 
upon  the  rivers  or  inland  waters 
of  this  state;"  Gen.  Stat.  1906, 
chap.  5,  Tit.  4,  Div.  4.  Georgia: 
"common  carriers."  No  specific 
mention  of  water  carriers;  Code 
1910,  sees.  2660,  et  seq.  Idaho: 
no  commission.  Illinois:  trans- 
portation by  "rail  or  water;"  Re- 
visal  1909,  chap.  114,  sec.  368. 
Indiana:  no  reference  to  water 
carriers;  Acts  1907,  chap.  241, 
sec.  18.  Iowa:  id.;  Laws  1907, 
chap.  98,  sec.  1.  Kansas:  id.; 
Laws  ]911,  chap.  238.  Kentucky: 
id.;  Carroll's  Stat.  1909,  sec.  821, 
et  seq.  Louisiana:  "steamboat 
and  other  water  craft;"  Stat. 
1906,  no.  36,  sec.  1.  Maine:  no 
reference  to  water  carriers;  Re- 
vised Stat.  1903,  chap.  1.  Mary- 
land: includes  "steamboat,  pow- 
erboat and  vessel-boat  and 
ferry  companies,  canal  compa- 
nies;" Laws  1910,  chap.  180,  sec. 
1;  Laird  v.  Baltimore  &  O.  R. 
Co.,  121  Md.  193,  88  Atl.  348. 
Massachusetts:    same   power    over 


100 


State  Regulation 


DO. 


Ball  -^^  that  militates  against  this  rule.  In  that  case,  the  com- 
merce was  interstate  and  the  language  of  the  opinion  must  be 
construed  with  reference  to  that  fact,  and  Mr.  Justice  Field,  in 
the  course  of  the  opinion,  was  careful  to  say  that  there  was  an 


steamship  companies  as  rail- 
roads; Acts  1906.  chap.  433.  pt. 
1,  sec.  6.  Michigan:  "wholly  by 
rail  or  partly  by  rail  and  partly 
by  water;"  Pub.  Acts  1909.  no. 
300.  sec.  3.  Minnesota:  id.;  Rev. 
Laws  1905,  chap.  28,  sec.  1953. 
Mississippi:  no  mention  of  water 
carriers;  Const.,  Art.  7,  sees.  184, 
195;  Laws  1908,  chap.  82,  sec. 
1.  Missouri:  id.;  Acts  1909,  sees. 
3189,  3251,  3252.  Montana:  id.; 
Rev.  Codes  1907,  sees.  4373,  4375. 
Nebraska:  id.;  Stat.  1907,  sec. 
10650  (b).  Xerada:  "wholly  by 
rail  or  partly  bj-  rail  and  parti}' 
bj^  water."  Xczv  Hampshire:  "all 
common  carriers;"  public  utili- 
ties, includes  ferry  and  toll 
bridge;  Laws  1909.  chap.  126, 
sec.  1;  Laws  1911,  chap.  164.  sec. 
1.  Xezi'  Jersey:  canal  compa- 
nies; Laws  1911,  chap.  195,  sec. 
15.  New  Mexico:  no  mention  of 
water  carriers;  Const.,  Art.  XL 
sec.  7.  New  York:  common  car- 
riers; no  specific  mention  of  wa- 
ter carriers;  Laws  1910,  chap. 
480.  sec.  2.  North  Carolina:  all 
common  carriers,  steamboat 
companies  mentioned;  Const., 
Art.  VIL  sec.  142;  Pell's  Re- 
visal  1908,  sec.  1094  (2),  1099. 
Ohio:  "wholly  by  rail  or  partly 
by  rail  and  partly  by  water  or 
wholly  by  water;  Code  1910, 
sec.  502;  Laws  1911,  No.  325,  sec. 
1.  Oklahoma:  "canal,  steamboat 
line;"  Const.,  Art.  IX,  sec.  34. 
Oregon:  "wholly  by  rail  or 
partly  by  rail  and  partly  by  wa- 
ter;"   Gen.    Laws    1907.    chap.    53, 


sec.  11.  Pennsylvania:  "by  water 
or  partly  by  railroad  and  partly 
by  water;"  Laws  1907,  No.  250, 
sec.  6.  Rhode  Island:  "steam- 
boat, powerboat  and  ferry  com- 
panies;" Acts  1912,  chap.  795. 
sec.  2.  South  Carolina:  "railroad 
companies;"  Gen.  Stat.  1902,  sec. 
2082;  Const.,  Art.  IX,  sec.  14. 
South  Dakota:  no  mention  of 
water  carriers;  Rev.  Pol.  Code 
1903,  sees.  431,  450;  Laws  1911. 
chap.  207,  sees.  1.  et  seq.  Ten- 
nessee: no  mention  of  water  car- 
riers: Laws  1897,  chap.  10,  sec. 
3;  Acts  1907,  chap.  390.  Texas: 
id.;  Sayles'  Civ.  Stats.  1897.  Art. 
4562.  et  seq.  Utah:  no  commis- 
sion. J'ennont:  no  mention  of 
water  carriers;  Pub.  Stat.  1906. 
sec.  4602.  J'irginia:  "canal, 
steamboat  or  steamship  line;" 
Const.,  sec.  153.  IJ^ashington: 
"steamboat  companies;"  Laws  j 
1911,  chap.  117.  sec.  8.  JVest 
J'irginia:  no  commission.  IVis- 
consin:  "wholly  by  rail  or  partly 
by  rail  and  partly  by  water;" 
Laws  1905,  chap.  362,  sec.  2: 
Amended  Laws  1907,  chap.  582. 
IVyoming:  no  commission.  The 
foregoing  references  to  state 
laws  relating  to  regulation  of 
common  carriers  are  inserted  to  j 
show  where  specific  statements  I 
are  made  giving  power  to  regu- 
late water  carriers.  The  full  ex- 
tent of  the  power  to  regulate  is 
not   attempted   to   be   set   forth. 

=^The  Daniel  Ball  z:  United 
States,  10  Wall.,  77  U.  S.  557,  19 
L.   Ed.   999. 


§  56. 


Affecting  Interstate  Commerce. 


101 


intrastate  commerce  over  which  Congress  had  no  control.     He 
said:  ^^- 

"There  is  undoubtedly  an  internal  commerce  which  is  sub- 
ject to  the  control  of  the  states.  The  power  delegated  to  Con- 
gress is  limited  to  commerce  'among  the  several  states,'  with 
foreign  nations,  and  with  the  Indian  tribes.  This  limitation 
necessarily  excludes  from  federal  control  all  commerce  not  thus 
designated,  and  of  course  that  commerce  which  is  carried  on 
entirely  within  the  limits  of  a  state,  and  does  not  extend  to  or. 
affect  other  states." 

§  56.  Regulating-  Pilotage,  Ports,  Harbors  and  Vessels. 
— Although  state  laws  concerning  pilotage  are  regulations  of 
commerce,  such  laws  fall  within  that  class  of  powers  which  may 
be  exercised  by  the  states  until  Congress  shall  see  fit  to  act. 

The  first  act  of  Congress  on  the  subject  left  this  right  in  the 
states  and,  although  there  have  been  other  acts  of  Congress  relat- 
ing to  pilots,  there  is  yet  power  in  the  states  to  make  regulations 
concerning  pilots  in  their  domestic  ports. 

A  law  of  California  requiring  certain  vessels  entering  and 
departing  from  her  ports  to  take  on  a  resident  bar  pilot  was  held 
valid  by  the  Supreme  Court  for  the  reason  that  the  law  did  not 
conflict  with  any  federal  statute  or  regulation,  although  the 
federal  power  to  regulate  was  stated  to  be  "unquestioned.'"  -^^ 


''-The  Daniel  Ball  is  cited  in 
the  Minnesota  Rate  Cases 
(Simpson  v.  Shepard,  230  U.  S. 
352,  399),  and  the  location  in  the 
opinion  of  the  citation  indicates 
that  the  decision  was  considered 
by  Mr.  Justice  Hughes  as  not 
excluding  intrastate  commerce. 
For  a  further  discussion  of  the 
case  see  sec.  67,  post.  The  ques- 
tion of  the  jurisdiction  of  the 
federal  courts  under  the  consti- 
tutional provision  quoted  in  the 
text  is  not  involved  in  fixing  a 
rate.  As  to  jurisdiction,  see  The 
Belfast,  7  Wall.,  74  U.  S.  624, 
19  L.  Ed.  266;  The  Robert  W. 
Parsons,  191  U.  S.  17,  35,  48  L. 
Ed.  73,  24  Sup.  Ct.  8.  See  as  to 
whether    commerce    is    interstate 


or  intrastate,  citing  The  Daniel 
Ball,  Diamond  Match  Co.  v.  On- 
tonagon, 188  U.  S.  82,  95,  47  L. 
Ed.  394,  23  Sup.  Ct.  266;  Penn- 
sylvania R.  Co.,  State  of  New- 
York  ex  rel.  v.  Knight,  192  U. 
S.  21,  27,  48  L.  Ed.  325,  24  Sup. 
Ct.  202;  and  Wilmington  Transp. 
Co.  V.  R.  R.  Com.  of  Cal.,  236 
U.  S.  151,  59  L.  Ed.  — ,  35  Sup. 
Ct.  276.  An  ordinance  fixing  a 
rate  of  speed  for  boats  in  the 
Chicago  river,  was  held  not  to 
interfere  with  the  rights  of  nav- 
igation or  with  interstate  com- 
merce, Canada  Atlantic  Transit 
Co.  V.  City  of  Chicago,  210  Fed. 
7,    125    C.    C.    A.    587. 

^Anderson     v.    Pacific    C.     S. 
Co.,    225    U.     S.    187,    56    L.     Ed. 


102  State  Regulation  [§  56. 

A  Louisiana  statute  prohibiting  other  than  a  duly  licensed  pilot 
from  piloting  vessels  on  the  Mississippi  river  within  the  borders 
of  the  state  was  held  to  be  a  valid  law.-^'* 

While  states  may  establish  harbor  lines  on  navigable  waters, 
such  lines  have  no  permanent  force  as  against  the  will  of  Con- 
gress and,  therefore.  Congressional  action  supersedes  prior  state 
action. -^^ 

A  law  of  the  state  of  Alabama  requiring  the  owners  of  steam- 
boats navigating  the  waters  of  the  state  to  file  with  a  state  officer 
certain  information  relating  to  the  ownership  of  the  boat  and 
residence  of  the  owners  was  held  void,  in  so  far  as  the  law  was 
brought  to  bear  upon  a  vessel  engaged  in  interstate  commerce 
and  licensed  and  enrolled  under  the  Act  of  Congress  for  con- 
ducting the  coasting  trade. -^*^  In  this  case,  ^Ir.  Justice  Nel- 
son stated  th?  applicable  principle  as  follows : 

■'The  whole  commercial  marine  of  the  country  is  placed  by 
the  Constitution  under  the  regulation  of  Congress,  and  all  laws 
passed  by  that  body  in  the  regulation  of  navigation  and  trade, 
whether  foreign  or  coastwise,  are  therefore  but  the  exercise  of 
an  undisputed  power.  When,  therefore,  an  act  of  the  Legisla- 
ture of  a  state  prescribes  a  regulation  of  the  subject  repugnant 
to  and  inconsistent  with  the  regulation  of  Congress,  the  state 
law  must  give  way ;  and  this,  without  regard  to  the  source  of 
power  whence  the  state  Legislature  derived  its  enactment. 


10i7,  32  Sup.  Ct.  526,  citing  au---|How.,  63  U.  S.  227,  16  L.  Ed. 
thorities,    stating   and    giving   the'-'243;     Foster     v.     Davenport,     22 

history    of    the    federal    laws    on  How.,    63    U.    S.    244,    16    L.    Ed. 

the   subject.     See  also   Cooley  v.  248.      For    further    statement    of 

Board      of     Wardens,     12     How.,  the      principle      controlling      the 

53  U.  S.  299,  13  L.  Ed.  996.     The  questions    discussed    in    the    text 

Queen,    206    Fed.    148,    124    C.    C.  and     for    citation    of     authorities 

A.     214,     reversing     same     styled  see,   Simpson   i\  Shepard,   230   U. 

case,    184    Fed.    537.  S.    352,    403,    57    L.    Ed.    1511,    33 

"**  State  V.   Leech,   119   La.   522,  Sup.    Ct.    729;    and    holding    that 

44  So.  285,  129  Am.  St.  Rep.  336;  tugs     used    in    lightering    vessels 

Leech    v.    Louisiana,    214    U.    S.  engaged    in    interstate    commerce 

175,    53    L.    Ed.    956,   29    Sup.    Ct.  were     themselves     instrumentali- 

552.  ties   of  interstate   commerce,   see 

'^  Philadelphia    Co.  v.   Stimson,  United     States    v.     Great     Lakes 

Secy,   of  War,   223   U.   S.   605,   56  Towing    Co..    208    Fed.    733,    217 

L.   Ed.   570,  32   Sup.   Ct.  340.  Fed.    657. 

^°  Sinnot      v.      Davenport,      22 


§  57.]  Affecting  Interstate  Commerce.  103 

"This  paramount  authority  of  the  act  of  Congress  is  not  only 
conferred  by  the  Constitution  itself,  but  is  the  logical  result  of 
the  power  over  the  subject  conferred  upon  that  body  by  the 
states.  They  surrendered  this  power  to  the  General  Govern- 
ment ;  and  to  the  extent  of  the  fair  exercise  of  it  by  Congress, 
the  act  must  be  supreme. 

"The  power  of  Congress,  however,  over  the  subject  does  not 
extend  further  than  the  regulation  of  commerce  with  foreign 
nations  and  among  the  several  states.  Beyond  these  limits  the 
states  have  not  surrendered  their  power  over  the  subject,  and 
may  exercise  it  independently  of  any  control  or  interference  of 
the  General  Government." 

Wharfage  charges  and  tolls  for  the  use  of  artificial  facilities 
may  be  exacted  "where  Congress  has  not  acted,"  although  the 
payment  is  required  of  those  engaged  in  interstate  or  foreign 
commerce ;  -^"  and  states  may  by  statute  give  a  lien  upon  all 
vessels,  whether  domestic  or  foreign  and  whether  engaged  in 
interstate  or  intrastate  commerce,  for  injuries  committed  to  per- 
sons and  property  within  the  state,  and  the  statute  may  provide 
that  for  non-maritime  torts,  relief  may  be  had  in  the  state 
courts. 2^^ 

§  57.  Boards  of  Trade  and  Exchanges. — A  statute  of  the 
state  of  [Missouri  provided  among  other  things  that  it  should  be 
"unlawful  for  any  corporation,  association,  copartnership  or  per- 
son to  keep,  or  cause  to  be  kept,  in  this  state,  any  office,  store  or 
other  place  wherein  is  permitted  the  buying  or  selling  the  shares 
of  stocks  or  bonds  of  any  corporation,  or  petroleum,  cotton, 
grain,   provisions    or   other   commodities,    either   on   margins   or 


^'Simpson   v.    Shepard,    230   U.  Sup.    Ct.   907;    Sands   v.    Manistee 

S.    352,    405,    57    L.    Ed.    1511,    33  River    Improvement    Co..    123    U. 

Sup.  Ct.  729;  Keokuk  Packet  Co.  S.  288,  295,  31  L.  Ed.  149,  8  Sup. 

V    Keokuk,  95  U.  S.  80,  24  L.  Ed.  Ct.  113. 

377;    Cincinnati,   etc..    Packet    Co.  "''Martin    v.   West,    222    U.    S. 

V.   Cattletsburg,  105  U.   S.  559,  26  191,    56    L.    Ed.    159,    32    Sup.    Ct. 

L.    Ed.    1169;    Parkersburg    &    O.  42,  36  L.  R.  A.  (N.  S.)  592;  John- 

R.  T.  Co.  V.  Parkersburg,  107  U.  son     v.    Chicago    &    P.     Elevator 

S.  691,  27   L.   Ed.  584,  2  Sup.   Ct.  Co.,  119  U.  S.  388,  400,  30  L.  Ed. 

732;    Huse   v.    Glover,    119    U.    S.  447,  7  Sup.  Ct.  509;  Davis  v.  Cleve- 

543,  30  L.  Ed.  487,  7  Sup.  Ct.  313;  land,  C.  C.  &  St.   L.  Ry.   Co.,  217 

Ouachita    Packet     Co.   v.    Aiken,  U.   S.  157,  179,  54  L.   Ed.  708,  30 

121    U.    S.    444,    30    L.    Ed.    976.    7  Sup.    Ct.  463. 


104 


State  Regulation 


58. 


otherwise,  where  the  same  is  not  at  the  time  actually  paid  for 
and  delivered,  without  at  the  time  of  the  sale  the  seller  shall 
cause  to  be  made  a  complete  record  of  the  thing  sold,  the  pur- 
chaser and  the  time  of  delivery  in  a  book  kept  for  that  purpose ; 
and  at  the  time  the  seller  shall  deliver  to  the  purchaser  a  written 
or  printed  memorandum  of  said  sale,  on  which  he  shall  place, 
or  cause  to  be  placed,  a  stamp  of  the  value  of  twenty-five  cents." 
It  was  urged  that  this  law  was  invalid  because  it  affected  sales 
of  grain,  provisions  and  other  commodities  which  were  at  the 
time  of  sale  in  the  course  of  transportation  in  interstate  com- 
merce. The  Supreme  Court  held  that  the  statute  related  to  the 
place  of  sale  and  did  not  interfere  with  interstate  commerce.'-®^ 

§  58.  Inspection — Quarantine,  Game,  Food,  Liquor  and 
Lottery  Laws. — "State  inspection  laws  and  statutes  designed 
to  safeguard  the  inhabitants  of  a  state  from  fraud  and  imposition 
are  valid  when  reasonable  in  their  requirements  and  not  in  con- 
flict with  federal  statutes,  although  they  may  affect  interstate 
commerce  in  their  relation  to  articles  prepared  for  export  or  by 
including  incidentally  those  brought  into  the  state  and  held  for 
sale  in  the  original  imported  packages."  -^^  "And  for  the  pro- 
tection of  its  game  and  the  preservation  of  a  valuable  food  sup- 
ply, the  state  may  penalize  the  possession  of  game  during  the 
closed  season  whether  obtained  within  the  state  or  brought  from 
abroad."  -^^ 


"*'  Brodnax  v.  Missouri,  219  U. 
S.  285,  55  L.  Ed.  219,  31  Sup.  Ct. 
238,  affirming  State  v.  Brodnax, 
228  Mo.  225,  128  S.  W.  177,  137 
Am.  St.  Rep.  613.  See  also 
Hatch  V.  Reardon,  204  U.  S.  152, 
51  L.  Ed.  415,  27  Sup.  Ct.  188, 
and  House  v.  Mayes,  219  U.  S. 
270,  55  L.  Ed.  213,  31  Sup.  Ct, 
234. 

'"^  Simpson  v.  Shepard,  230  U. 
S.  352,  408,  57  L.  Ed.  1511,  33 
Sup.  Ct.  729,  744;  Red  "C"  Oil 
Co.  V.  North  Carolina,  222  U.  S. 
380,  56  L.  Ed.  240,  32  Sup.  Ct. 
152,  affirming  Red  "C"  Oil  Co. 
V.  Board  of  Agriculture,  172  Fed. 
695;      Patapsco      Guano      Co.      v. 


North   Carolina,  171  U.  S.  345,  43 
L.    Ed.    191,    18    Sup.    Ct.   862. 

'"^  Simpson  v.  Shepard,  230  U. 
S.  352.  408,  57  L.  Ed.  1511,  33 
Sup.  Ct.  724,  744;  Silz  v.  Hester- 
berg,  211  U.  S.  31,  53  L.  Ed.  75, 
29  Sup.  Ct.  10;  Geer  v.  Connecti- 
cut, 161  U.  S.  519,  40  L.  Ed.  793, 
16  Sup.  Ct.  600;  Manufacturers' 
Gas  &  Oil  Co.  V.  Indiana  Natural 
Gas  &  Oil  Co.,  155  Ind.  547,  58 
N.  E.  706,  53  L.  R.  A.  135;  Adams 
V.  Mississippi  Lumber  Co.,  84 
Miss.  29,  36  So.  68;  Re  Deininger, 
108  Fed.  623;  McDonald  v. 
Southern  Exp.  Co..  134  Fed.  284; 
State  V.  Mallory,  73  Ark.  249,  83 
S.  \V.  955,  67  L.  R.  A.  778;   State 


§  58.: 


Affecting  Interstate  Commerce. 


10: 


Statutes  of  this  nature,  however,  must  not  directly  affect  in- 
terstate commerce  and  must  not,  under  the  guise  of  an  inspection 
fee,  be  a  tax  on  such  commerce. -''*- 

The  subject  aft'ects  only  incidentally  the  questions  discussed 
in  this  chapter,  and  it  is  not  within  the  purview  of  this  book 
to  treat  of  the  subject  of  interstate  commerce  except  as  affect- 
ing carriers.  Food  and  liquors  are  commodities,  and  it  has  been 
held  that  a  lottery  ticket  is  a  commodity  in  such  a  sense  that  its 
transportation  is  commerce.  In  a  note  are  given  decisions  which 
illustrate  the  holding  of  the  courts  showing  the  extent  of  the 
police  power  of  the  states. -^^ 


V.  Harbourne,  70  Conn.  492;  40 
Atl.  179,  66  Am.  St.  Rep.  126,  40 
L.  R.  A.  610;  Westheimer  v. 
Weisman,  8  Kan.  App.  78,  54 
Pac.  332;  People  v.  O'Neill,  110 
Mich.  SaS,  88  N.  W.  227,  33  L. 
R.  A.  697;  Selkirk  v.  Stephens, 
72  Minn.  336,  75  N.  W.  386,  40 
L.  R.  A.  760;  Ames  v.  Kirby,  71 
N.  J.  L.  446,  59  Atl.  558;  People 
V.  A.  Booth  &  Co.,  42  Misc.  327, 
86  N.  Y.  Supp.  272;  People  v. 
Buffalo  Fish  Co.,  164  N.  Y.  105, 
58  N.  E.  34,  79  Am.  St.  Rep.  622, 
52  L.  R.  A.  807;  People  v.  Boot- 
man,  180  N.  Y.  9,  72  N.  E.  505. 

^°"  Note  291  supra;  Savage  v. 
Jones,  225  U.  S.  501,  56  L. 
Ed.  1182,  32  Sup.  Ct.  715;  Mc- 
Lean V.  Denver  &  R.  G.  R.  Co., 
203  U.  S.  38,  51  L.  Ed.  78,  27  Sup. 
Ct.  1;  New  Mexico  v.  Denver  & 
R.  G.  R.  Co.,  12  N.  M.  425,  78 
Pac.    74. 

'^"Quarantine  Lazes:  Reid  v. 
Colorado,  187  U.  S.  138,  47  L. 
Ed.  108,  23  Sup.  Ct.  92;  Asbell  v. 
Kansas,  209  U.  S.  251,  52  L.  Ed. 
778,  28  Sup.  Ct.  485,  14  Ann.  Cas. 
1101;  United  States  v.  Baltimore 
&  O.  S.  W.  R.  Co.,  222  U.  S.  8. 
56  L.  Ed.  68,  32  Sup.  Ct.  6;  Min- 
nesota V.    Barber,    136   U.    S.    313, 


34  L.  Ed.  455,  10  Sup.  Ct.  862; 
Simpson  v.  Shepard,  230  U.  S. 
352,  406,  57  L.  Ed.  1511,  33  Sup. 
Ct.  729;  Morgan's  S.  S.  Co.  v. 
Louisiana,  118  U.  S.  455,  30  L. 
Ed.  237,  6  Sup.  Ct.  1114;  Mis- 
souri, K.  &  T.  Ry.  Co.  V.  Haber, 
169  U.  S.  613,  42  L.  Ed.  878,  18 
Sup.  Ct.  488;  Louisiana  v.  Texas, 
176  U.  S.  1,  44  L.  Ed.  347,  20 
Sup.  Ct.  251;  Rasmussen  v.  Idaho, 
181  U.  S.  198,  45  L.  Ed.  820,  21 
Sup.  Ct.  594;  Compagnie  Fran- 
caise,  etc.  v.  Board  of  Health,  186 
U.  S.  380,  46  L.  Ed.  1309,  22  Sup. 
Ct.  811;  Midland  Valley  R.  Co.  v. 
State,  35  Okla.  672,  130  Pac.  803. 
Such  laws,  however,  can  not  be 
made  a  cover  for  discriminations 
and  arbitrary  enactments  having  no 
reasonable  relation  to  health, 
Hannibal  &  St.  J.  R.  Co.  v. 
Husen,  95  U.  S.  465,  472,  473,  24 
L.  Ed.  527.  Pure  Food:  McDer- 
mott  V.  Wisconsin,  228  U.  S.  115, 
57  L.  Ed.  754,  33  Sup.  Ct.  431, 
reversing  same  case,  143  Wis.  18, 
126  Mo.  888,  21  Am.  Cas.  1315; 
Texas  &  P.  Ry.  Co.  r.  Abilene 
Cot  Oil.  Co.,  204  U.  S.  426,  51  L. 
Ed.  553,  27  Sup.  Ct.  350,  9  Am. 
Cas.  1075;  Northern  Pac.  Ry.  Co. 
r.   Washington,   222   U.   S.   370,   .-)6 


106 


State  Re:gulation 


:§  59. 


§  59.  Taxation.      Including    License    Taxes. — The    states 
may  not  burden  interstate  commerce  by  taxing  the  business,  nor 


L.  Ed.  237,  32  Sup.  Ct.  IGO; 
Southern  Ry.  Co.  v.  Reid,  222  U. 
S.  424,  56  L.  Ed.  257,  32  Sup.  Ct. 
140;  Second  Employers'  Liability 
Cases,  Mondou  v.  N.  Y.  N.  H. 
&  H.  R.  Co.,  223  U.  S.  1,  56  L. 
Ed.  327,  32  Sup.  Ct.  169,  3S  L. 
R.  A.  (N.  S.)  44;  Savage  v.  Jones, 
225  U.  S.  501,  56  L.  Ed.  1182,  32 
Sup.  Ct.  715;  Hipolite  Egg  Co. 
V.  United  States,  220  U.  S.  45, 
55  L.  Ed.  364,  31  Sup.  Ct. 
364,  construing  federal  statute. 
Laws  of  Congress  supreme. 
High  V.  Kirkwood,  237  U.  S. 
52.  59  L.  Ed.,  35  Sup.  Ct. 
501.  Liquors:  Sale  of  in  original 
packages  imported  to  state  in 
interstate  or  foreign  commerce 
not  subject  to  prohibitory  laws 
of  state,  Leisy  v.  Hardin,  135  U. 
S.  100,  34  L.  Ed.  128,  10  Sup.  Ct. 
681.  See  application  of  princi- 
ple, Bowman  v.  Chicago  &  N.  W. 
R.  Co.,  125  U.  S.,465,  31  L.  Ed. 
700,  8  Sup.  Ct.  689;  Rhodes  v. 
Iowa,  170  U.  S.  412,  42  L.  Ed. 
1088,  18  Sup.  Ct.  664;  Vance  v. 
Vandercook  Co.,  170  U.  S.  438, 
42  L.  Ed.  1100,  18  Sup.  Ct.  674; 
Scott  V.  Donald,  165  U.  S.  58,  95, 
41  L.  Ed.  632,  17  Sup.  Ct.  265; 
May  V.  New  Orleans,  178  U.  S. 
496,  44  L.  Ed.  1165,  20  Sup.  Ct. 
976;  Austin  v.  Tennessee,  179  U. 
S.  343,  45  L.  Ed.  224,  21  Sup.  Ct. 
132;  American  Exp.  Co.  v.  Iowa, 
196  U.  S.  133,  49  L.  Ed.  417,  25 
Sup.  Ct.  182;  Cook  v.  Marshall 
County,  Iowa,  196  U.  S.  261,  49 
L.  Ed.  471,  25  Sup.  Ct.  233;  Pabst 
Brewing  Co.  v.  Crenshaw,  198  U. 
S.  17,  49  L.  Ed.  925,  25  Sup.  Ct. 
552;  Heyman  v.  Southern  Ry. 
Co.,   203  U.   S.  270,  51  L.   Ed.   178, 


27  Sup.  Ct.  104;  Rearick  v.  Penn- 
sylvania, 203  U.  S.  507,  51  L. 
Ed.  295,  27  Sup.  Ct.  159;  Adams 
Exp.  Co.  V.  Kentucky,  206  U.  S. 
129,  51  L.  Ed.  987,  27  Sup.  Ct. 
606;  Adams  Exp.  Co.  v.  Ken- 
tucky, 214  U.  S.  218,  53  L.  Ed. 
972,  29  Sup.  Ct.  633,  construing 
Wilson  Act  of  Aug.  8,  1890,  chap. 
728,  26  Stat.  313;  Ex  Parte  Ok- 
lahoma, 220  U.  S.  191,  55  L.  Ed. 
431,  31  Sup.  Ct.  426,  dispensary 
law.  Louisville  &  N.  R.  Co.  v. 
Cook  Brewing  Co.,  223  U.  S.  70, 

56  L.  Ed.  355,  32  Sup.  Ct.  189  af- 
firming same  case,  172  Fed.  117, 
96  C.  C.  A.  322,  40  L.  R.  A.  798, 
and  holding  that  a  railroad  will 
be  enjoined  from  refusing  beer 
for  shipment  in  interstate  com- 
merce, even  though  the  shipment 
is  to  a  prohibition  district.  Pur- 
ity Extract  Co.  v.  Lynch,  226  U. 
S.  192,  57  L.  Ed.  84,  33  Sup.  Ct. 
44,  discussing  effect  of  Wilson 
Act  and  affirming  Purity  Extract 
Co.  V.  Lynch,  100  Miss.  650,  56 
So.  316.  De  Bary  v.  Louisiana, 
227  U.  S.  108,  57  L.  Ed.  441,  33 
Sup.  Ct.  739,  affirming  State  v. 
Frederick  De  Bary  &  Co.,  130 
La.  1090,  58  So.  892;  McDermott 
V.  Wisconsin,  228  U.  S.   115,  134, 

57  L.  Ed.  754,  33  Sup.  Ct.  431, 
discussing  the  meaning  of  "orig- 
inal package,"  and  reversing  Mc- 
Dermott V.  State,  143  Wis.  18, 
126  N.  W.  888;  State  v.  Intoxi- 
cating Liquors,  104  Me.  502,  71 
Atl.  758;-  State  v.  18  Casks 
of  Beer,  24  Okla.  786,  104  Pac. 
1093;  American  Exp.  Co.  v.  Mil- 
ler, 104  Miss.  247,  61  So.  306,  45 
L.  R.  A.  (N.  S.)  120;  Crescent 
Brewing  Co.  v.  Oregon  S.  L.  R. 


§  59.]  Affecting  Interstate;  Commerce.  107 

by  taxing  the  receipts  of  such  commerce. -^^     But  the  fact  that  a 


Co.,  24  Idaho  106,  132  Pac.  975; 
Kirkpatrick  v.  State,  138  Ga.  794, 
76  S.  E.  53;  State  v.  Miller,  66  W. 
Va.  436,  66  S.  E.  522.  By  Act  of 
Congress  passed  over  the  Presi- 
dent's veto  by  the  Senate  Feb- 
ruary 28,  1913,  and  by  the  House 
March  1,  1913,  known  as  the 
Webb-Kenyon  Act,  it  was  en- 
acted,— "That  the  shipment  or 
transportation,  in  any  manner  or 
by  any  means  whatsoever,  of  any 
spirituous,  vinous,  malted,  fer- 
mented, or  other  intoxicating  li- 
quor of  any  kind,  from  one  state, 
territory,  or  district  of  the 
United  States,  or  place  noncon- 
tiguous to  but  subject  to  the  ju- 
risdiction thereof,  into  any  other 
state,  territory,  or  district  of  the 
United  States,  or  place  noncon- 
tiguous to  but  subject  to  the  ju- 
risdiction thereof,  which  said 
spirituous,  vinous,  malted,  fer- 
mented, or  other  intoxicating 
liquor  is  intended,  by  any  per- 
son interested  therein,  to  be  re- 
ceived, possessed,  sold,  or  in  any 
manner  used,  either  in  the  orig- 
inal package  or  otherwise,  in 
violation  of  any  law  of  such 
state,  territory,  or  district  of  the 
United  States,  or  place  noncon- 
tiguous to  but  subject  to  the 
jurisdiction  thereof,  is  hereby 
prohibited."  Appendix  N,  post. 
For  discussion  of  this  Act  see 
Atkinson  v.  Southern  Exp.  Co., 
94  S.  C.  444,  78  S.  E.  516,  48  L. 
R.  A.  (N.  S.)  349;  Atkinson  v. 
Southern  Exp.  Co.,  94  S.  C.  457, 
78  S.  E.  520;  Adams  Exp.  Co.  v. 
Commonwealth,  154  Ky.  462,  157 
S.  W.  908,  48  L.  R.  A.  (N.  S.) 
342;  State  v.  Grier,  88  Atl.  579; 
United    States   v.    Oregon    &    W. 


R.  &  Nav.  Co.,  210  Fed.  378. 
Lotteries:  Carriage  of  lottery 
tickets  by  a  common  carrier  in 
interstate  commerce  may  be 
prohibited  by  Congress,  Lottery 
case.  Champion  v.  Ames,  188 
U.  S.  321,  47  L.  Ed.  492,  23 
Sup.  Ct.  321.  See  also,  Francis 
v.  United  States,  188  U.  S.  375. 
47  L.  Ed.  510,  23  Sup.  Ct.  334; 
Northern  Securities  Co.  v. 
United  States,  193  U.  S.  197,  48 
L.  Ed.  679,  24  Sup.  Ct.  436; 
United  States  v.  Northern  Se- 
curities Co.,  120  Fed.  721;  United 
States  V.  Whelpley,  125  Fed. 
617;  State  v.  Lowry  (Ind.),  166 
Ind.  372,  77  N.  E.  728,  4  L.  R. 
A.  (N.  S.)  532;  People  v.  A. 
Booth  &  Co.,  42  Misc.  331,  86 
N.  Y.  Supp.  272;  Re  Gregory, 
219  U.  S.  210,  55  L.  Ed.  184,  31 
Sup.  Ct.  143.  For  a  discussion 
by  the  Supreme  Court  of  the 
principles  of  the  text  and  citing 
authorities,  see  Slight  v.  Florida, 
337  U.  S.  52,  59  L.  Ed.  — ,  35  Sup. 
Ct.  501.  Blue  Sky  Law  held  in- 
valid, Alabama  &  N.  O.  Transp. 
Co.  z:  Doyle,  210  Fed.  173; 
Compton  r.  Allen,  216  Fed.  537; 
citing  cases.  Inspection  Lazvs. 
Oyster  inspection  law  held  in- 
valid as  an  interference  with  in- 
terstate commerce.  Foote  v. 
Stanley,  232  U.  S.  494,  58  L.  Ed. 
698,  34  Sup.  Ct.  377;  peddler's  li- 
cense law  invalid,  Stewart  v. 
Michigan,  232  U.  S.  665,  58  L. 
Ed.  786,  34  Sup.  Ct.  476. 

-■•*  Galveston,  H.  &  S.  A.  Ry. 
Co.  V.  Texas,  210  U.  S.  217,  52 
L.  Ed.  1031,  28  Sup.  Ct.  638; 
Western  Union  Tel.  Co.  v.  Kan- 
sas, 216  U.  S.  1,  54  L.  Ed.  355,  30 
Sup.      Ct.    190;     Pullman     Co.    v. 


108  State  Regulation  [§  59. 

corporation  is  engaged  in  interstate  commerce  does  not  exempt 
its  property  located  in  a  state  from  taxation  by  the  state. -^^  "It 
is  the  commerce  itself  which  must  not  be  burdened  by  state  ex- 
actions which  interfere  with  the  exclusive  federal  authority  over 
it.  A  resort  to  the  receipts  of  property  or  capital  employed  in 
part  at  least  in  interstate  commerce,  when  such  receipts  or  capital 
are  not  taxed  as  such  but  are  taken  as  a  mere  measure  of  a  tax 
of  lawful  authority  within  the  state,  has  been  sustained."  -^^ 

States  may  not  regulate  interstate  commerce,  nor  may  they 
prohibit  such  commerce.  They  can,  subject  to  this  limitation, 
prohibit  a  foreign  corporation  from  doing  business  in  the  state, 
although  a  state  "may  not  say  to  a  foreign  corporation,  you  may 
do  business  within  our  borders  if  you  permit  your  property  to 
be  taken  without  due  process  of  law,  or  you  may  transact  busi- 
ness in  intrastate  commerce  subject  to  the  regulatory  power  of 
the  state.  To  allow  a  state  to  exercise  such  authority  would 
permit  it  to  deprive  of  fundamental  rights  those  entitled  to  the 
protection  of  the  Constitution  in  every  part  of  the  Union." 

These  general  principles  are  stated  and  cases  cited  by  Air. 
Justice  Day  in  Baltic  Mining  Co.  v.  Massachusetts,  note  296, 
supra. 

Charging  a  license  fee  to  automobiles  using  the  roads  of  a 
state  is  analogous  to  levying  a  tax,  and  in  the  absence  of  Con- 
gressional action  it  is  legal  to  charge  such  fee  even  as  to  automo- 
biles moving  in  interstate  commerce. -^"^ 

Kansas,  216  U.   S.  56,   54   L.   Ed.  Grand  Trunk  Ry.   Co.,  142  U.  S. 

378,    30    Sup.    Ct.    282;    Minnesota  217,    35    L.    Ed.    994,    12    Sup.    Ct. 

Rate    Cases,    230   U.    S.    352,    400,  121;      Provident      Institution      v. 

57    L.    Ed.   1511,   33   Sup.   Ct.   729,  Massachusetts,     6     Wall.,     73     U. 

and   previous   cases   therein   cited.  S.    632,    18    L.    Ed.    904;    Flint    v. 

'■"United     States    Efcp.    Co.     v.  Stone-Tracy    Co.,    220   U.    S.    107, 

Minnesota,    223    U.    S.    335,    56    L.  162-5,   55   L.    Ed.   389,   31   Sup.    Ct. 

Ed.   459,   32   Sup.   Ct.   211.  342;    United    States    Exp.    Co.    v. 

-""  Baltic   Mining   Co.   v.   Massa-  Minnesota,  233  U.  S.  335,  56  L.  Ed. 

chusetts,   231   U.   S.   68,   83,   58   L.  459,    32    Sup.    Ct.    211.      See    also 

Ed.    127,    34    Sup.    Ct.    15,    affirm-  Ohio  R.   &  W.  R.   Co.  v.   Dittey, 

ing    Baltic    Mining    Co.    v.    Com-  232  U.    S.    576,   58   L.    Ed.   737.   34 

monwealth,   207   Mass.  381,   93   N.  Sup.      Ct.      372,      affirming     same 

E.    831,    Am.    Cas.    1913    C.    805;  styled   case,   203    Fed.   537. 
S.    S.    White    Dental    Mnfg.    Co.  ^'  See  Sec.  58,  supra,  and  notes, 

V.      Commonwealth,      212     Mass.  and    Hendrick    v.    Maryland,    235 

25,      98      N.     E.      1056,      28      Am.  U.    S.    610,   59   L.    Ed.  — ,   35    Sup. 

&    E.    Ann.    Cas.    805;    Maine    v.  Ct.   140  and  cases  cited. 


§  60.] 


Affecting  Interstate  Commerce. 


109 


§  60.  Procedure  to  Test  the  Validity  of  State  Regula- 
tions.— Neither  the  act  of  a  state  legislature  nor  the  order  of  a 
state  administrative  body  can  be  final  and  conclusive  as  to  what 
are  equal  and  reasonable  charges,  rules  and  regulations.  The 
carrier  is  entitled  to  have  a  judicial  hearing  as  to  the  reason- 
ableness of  such  rates,  rules  and  regulations.-^^  Making  rates 
and  prescribing  regulations  for  the  government  of  carriers  for 
the  future  is,  however,  a  legislative  act,'-^^  and  courts  may  not 
set  aside  such  rates  or  regulations  unless  they  violate  the  Con- 
stitutional rights  of  the  carrier. 3*^*^ 

When  it  is  sought  to  avoid  a  rate  or  other  requirement  made 
by  a  state  or  under  its  authority,  in  the  absence  of  a  prescribed 
method  of  procedure,  the  carrier  affected  may  resort  to  a  court 
of  equity  and  ask  for  appropriate  relief.  The  court  resorted  to 
may  be  a  state  court,  or,  when  diverse  citizenship  exists  or  a  fed- 
eral question  is  involved,  the  United  States  District  Court.  On 
this  subject,  Mr.  Justice  Field  said :  ^**i 

"Nor  can  it  be  said  in  such  a  case  that  relief  is  obtainable  only 
in  the  courts  of  the  state.  For  it  may  be  laid  down  as  a  general 
proposition  that,  whenever  a  citizen  of  a  state  can  go  into  the 
courts  of  a  state  to  defend  his  property  against  the  illegal  acts 
of  its  officers,  a  citizen  of  another  state  may  invoke  the  juris- 
diction of  the  federal  courts  to  maintain  a  like  defense.  A  state 
can  not  tie  up  a  citizen  of  another  state,  having  property  rights 


''"'Chicago,  M.  &  St.  P.  R.  Co. 
V.  Minnesota,  134  U.  S.  418,  33  L. 
Ed.    970,    10   Sup.    Ct.    462. 

=»"Prentis  v.  Atlantic  C.  L.  R. 
Co.,  211  U.  S.  210,  53  L.  Ed.  150, 
29    Sup.    Ct.    67. 

=""  Sec.  47,  supra. 

'"  Reagan  v.  Farmers  L.  & 
T.  Co.,  154  U.  S.  362,  391.  38 
L.  Ed.  1014,  14  Sup.  Ct.  1047; 
Piatt  V.  Lecocq,  158  Fed.  723,  85 
C.  C.  A.  621,  where  Judge  San- 
born says:  "Rights  created  and 
lemedies  provided  by  the  stat- 
utes of  a  state  to  he.  pursued  in 
the  state  courts  may  be  enforced 
and  administered  in  the  national 
courts,  either  at  law  or  in  equity. 


as  the  natufe  of  the  rights  and 
remedies  may  require.  'A  party 
by  going  into  a  national  court 
does  not  lose  any  right  or  ap- 
propriate remedy  of  which  he 
might  have  availed*  himself  in 
the  state  courts  of  the  same  lo- 
cality.' Davis  V.  Gray,  16  Wall. 
83  U.  S.  203.  21  L.  Ed.  447; 
Darragh  v.  H.  Wetter  Mnfg. 
Co..  23  C.  C.  A.  609.  617,  78  Fed. 
7.  14;  National  Surety  Co.  v. 
State  B&nk,  56  C.  C.  A.  657,  667, 
120  Fed.  593,  603,  61  L.  R.  A. 
394;  Barber  Asphalt  Co.  v.  Mor- 
ris, 66  C.  C.  A.  55,  59.  132  Fed. 
945,   949,   67   L.    R.   A.   761." 


110  State  Regulatiox  [§  60. 

within  its  territory  invaded  by  unauthorized  acts  of  its  own  offi- 
cers, to  suits  for  redress  in  its  own  courts.  Given  a  case  where 
a  suit  can  be  maintained  in  the  courts  of  the  state  to  protect 
property  rights,  a  citizen  of  another  state  may  invoke  the  juris- 
diction of  the  federal  courts." 

If  resort  be  had  to  a  District  Court  of  the  United  States,  and 
application  for  an  interlocutory  injunction  is  presented,  the  hear- 
ing must  be  had  before  three  Judges  "of  whom  at  least  one  shall 
be  a  Justice  of  the  Supreme  Court  or  a  Circuit  Judge,"  and  a  di- 
rect appeal  may  be  taken  to  the  Supreme  Court  of  the  United 
States  from  an  order  granting  or  denying  after  notice  and  hear- 
ing an  interlocutory  in j unction. ^°- 

A  state  officer  whose  duty  it  is  to  enforce  the  statute  or  ad- 
ministrative regulation  claimed  to  be  invalid,  is  a  proper  party 
to  a  proceeding  for  inj unction. ^'^^ 

Some  states  provide  for  a  review  of  the  action  of  their  Com- 
missions, and  when  there  is  such  provision  a  suit  for  injunction 
should  not  be  commenced  until  the  rate  or  regulation  has  been 
fixed  by  the  body  having  the  last  word.-'^^^'* 

Suit  may  be  filed  by  the  states  for  penalties  or  mandamus 
may  be  brought  to  compel  obedience  to  the  orders  of  the  state 
regulating  body.^'^*^  To  such  suits  defense  may  be  made  and, 
where  a  right  claimed  under  the  Constitution  or  laws  of  the 
United  States  is  denied,  "and  the  decision  is  against  the  title, 
right,  privilege  or  immunity  especially  set  up  or  claimed,"  ulti- 
mate appeal  may  be  taken  to  the  Supreme  Court  of  the  United 
States.=506 

'"'Judicial       Code,       sec.       266,  441;  Cent,  of  Ga.  Ry.  Co.  v.  AIc- 

amended   by   Act    March   4,    1913,  Lendon,  157   Fed.  961. 

chap.     160,     37     Stat.     L.     1013;  ""  Prentis   v.   Atlantic   C.    L.    R. 

Louisville   &  N.   R.   Co.  v.   R.   R.  Co.,  211  U.  S.  210,  53  L.  Ed.  150. 

Com.    of    Alabama,    208    Fed.    35.  29   Sup.    Ct.   67. 

Post,   sec.   465.  ""  Southern   Ry.   Co.  v.  Atlanta 

""Ex    parte    Young,    209    U.    S.  Stove  Works,   128   Ga.   207,   57   S. 

123,    52    L.    Ed.    714,    28    Sup.    Ct.  E.    429. 

'"'Judicial    Code,   sec.   237. 


CHAPTER  II. 

Validity  and  Scope  of  the  Act  to  Regulate  Commerce. 

§  61.  Common    Law    Obligations    of    Common    Carriers. 

62.  Power    of    Congress    over    Interstate    Commerce. 

63.  Constitutionality  of  the  Act   to   Regulate   Commerce. 

64.  Reasons   for   the  Act  to   Regulate   Commerce. 

65.  Carriers    Included    in    the    Act. 

66.  Carriers'   Duties   under   the   Act. 

67.  What    Transportation    Included    in    the    Act. 

68.  Transportation   Included  in  the  Act,   continued. 

69.  Same    Subject. 

70.  Powers  and  Procedure  of  the  Interstate  Commerce  Commission. 

71.  Same   Subject. 

72.  Switch    Connections. 

73.  Damages   and    Penalties    for    Misquoting    a    Rate. 

74.  Penalties. 

75.  Investigations   by   the    Interstate    Commerce   Commission. 

76.  Additional    Power    Given    the    Interstate    Commerce    Commis- 

sion. 
77.     Commission  May  Suspeud  an  Advance  in  Rates. 

78.  Reports  of  Carriers. 

79.  Court   Procedure  with   Reference   to   the   Orders   of  the   Com- 

mission. 

§  61.  Common  Law  Obligations  of  Common  Carriers. — 

The  duty  of  a  common  carrier  to  transport  at  reasonable  rates 
existed  at  common  law.^  This  was  and  is  true  because  the 
business  of  carriage  for  the  public  is  one  of  a  quasi  public  nature 
and  the  charges  therefor  are  subject  to  regulation  by  the  public. 
In  the  Abilene  case,-  Mr.  Justice  White,  delivering  the  opinion 
of  the  court,  said : 

"Without  going  into  detail,  it  may  not  be  doubted  that  at  com- 
mon law,  where  a  carrier  refused  to  receive  goods  olifered  for 
carriage  except  upon  the  payment  of  an  unreasonable  sum,  the 
shi])per  had  a  right  of  action  in  damages.     It  is  also  beyond  con- 

'Tift  V.   Southern    Ry.    Co.,   123  553,    27    Sup.    Ct.    350.      See    also 

Fed.   789.  9   Ann.    Cas.   1075.     Penn.   R.   Co. 

'The    Abilene    Case,    Texas    &  v.   Preston,   237   U.   S.   121,   59   L. 

Pacific  Ry.  Co.  v.  Abilene  Cotton  Ed.    — ,    35    Sup.    Ct.    484. 
Oil   Co.,  204  U.   S.  426,  51  L.   Ed. 

Ill 


112  \'.\i,ii)iTv  A.xD  Scope;  of  the  [§  61. 

troversy  that  when  a  carrier  accepted  goods  without  payment  of 
the  cost  of  carriage  or  an  agreement  as  to  the  price  to  be  paid, 
and  made  an  unreasonable  exaction  as  a  condition  of  the  delivery 
of  the  goods,  an  action  could  be  maintained  to  recover  the  excess 
over  a  reasonable  charge.  And  it  may  further  be  conceded  that 
it  is  now  settled  that  even  where,  on  the  receipt  of  goods  by  a 
carrier,  an  exorbitant  charge  is  stated,  and  the  same  is  coer- 
cively  exacted  either  in  advance  or  at  the  completion  of  the  serv- 
ice, an  action  may  be  maintained  to  recover  the  overcharge.  2 
Kent.  Comm.  599,  and  note  A;  2  Smith  Lead.  Cas.,  pt.  1,  8th  Ed., 
Hare  &  Wahace  Notes,  p.  457." 

The  principle  of  the  right  of  organized  society  to  regulate  the 
rates  and  practices  of  carriers  was  recognized  at  least  as  early 
as  the  date  of  the  laws  of  Hammurabi,  King  of  ancient  Babylon,-^ 
and  the  same  principle  appears  in  the  common  law.  The  appli- 
cation of  the  principle  is  traced  in  the  opinion  of  Chief  Justice 
Waite  in  I**Iunn  v.  Illinois,'*  wherein  the  reason  therefor  is  stated 
to  be  that  where  "one  devotes  his  property  to  a  use  in  wdiich  the 
public  has  an  interest,  he,  in  effect,  grants  to  the  public  an  in- 
terest in  that  use." 

It  has  been  held  by  the  Supreme  Court  of  the  United  States 
that  rates  charged  in  contracts  of  fire  insurance  may  be  regulated 
by  state  laws,  the  basis  for  the  decision  being  that  when  a  busi- 
ness by  its  circumstances  and  nature  rises  from  a  private  to  a 
public  concern,  such  business  becomes  subject  to  governmental 
regulation.-'' 

Unjust  discrimination  was  also  illegal  at  common  law.  The 
Supreme  Court  has  approved  a  charge  substantially  to  the  eft"ect 
that  not  every  discrimination  in  rates  is  unjust,  and  that 
in  order  to  constitute  an  unjust  discrimination,  there  must  be  a 
difference  in  rates  under  substantially  similar  conditions  as  to 
service.    xAll  rates  must  be  reasonable ;  and,  under  like  conditions, 

■'Stephens     v.     Central     of     Ga.  :■.  C.   N.  O.  &  T.  P.  Rv.   Co.,  167 

Ry.    Co.,    138    Ga.    62.5,    628,    75    S.  U.   vS.  479,  495,  496,  42   L.   Ed.  243. 

E.   104,   42   L.   R.  A.    (N.   S.)    .■S41,  17   Sup.   Ct.  896,  and   Simpson  v. 

1913   E.    Ann    Cas.    609.  Shepard,    230    U.    S.    352,    412-417 

*  Munn     V.    Illinois,    94    U.      S.  inc.,   57   L.   Ed.   1511,   33    Sup.   Ct. 

4    Otto    113,    24    L.    Ed.    77.      For  729. 

summary  of  state  legislation  reg-  °  German    Alliance    Ins.    Co.    v. 

ulating     public     utility     corpora-  Lewis,   233   U.    S.   389,   58   L.    Ed. 

tions,    see    Interstate    Com.    Com.  1011,   34   Sup.   Ct.   612. 


§  62.]  Act  to  Regulate  Commerce.  113 

all  patrons  must  be  served  on  eqvial  terms.  While  there  is  no 
body  of  federal  common  law  separate  and  distinct  from  the  com- 
mon law  existing  in  the  several  states,  the  principles  of  the  com- 
mon law  are  operative  upon  all  interstate  commercial  transac- 
tions, except  so  far  as  they  -are  modified  by  congressional  enact- 
ment.^ 

§  62.  Power  of  Congress  over  Interstate  Commerce. — 
Paragraph  3,  Section  8,  Article  1,  of  the  Constitution  of  the 
United  States  contains  the  grant  of  power  to  Congress  over  in- 
terstate commerce  and  gives  Congress  the  power  "to  regulate 
commerce  with  foreign  nations,  among  the  several  states,  and 
with  the  Indian  tribes." 

The  limitation  of  the  scope  of  this  book  and  a  general  state- 
ment of  the  extent  of  the  regulatory  power  of  the  federal  govern- 
ment have  been  stated  in  Chapter  1,  supra.  There  it  was  shown 
that  the  power  of  Congress  over  interstate  commerce  was  plen- 
ary and  indivisible. 

That  the  power  to  regulate  interstate  commerce  is  complete 
in  Congress  has  never  been  doubted.  Mr.  Chief  Justice  Mar- 
shall stated  this  power  in  language  which  has  frequently  been 
cited  with  approval.    He  said  : " 

"We  are  now  arrived  at  the  inquiry.  What  is  this  power?  It 
is  the  power  to  regulate ;  that  is,  to  prescribe  the  rule  by  which 
commerce  is  to  be  governed.  This  power,  like  all  others  vested 
in  Congress,  is  complete  in  itself,  may  be  exercised  to  its  utmost 
extent,  and  acknowledges  no  limitations  other  than  are  pre- 
scribed  in   the  constitution If,   as   has   always   been 

understood,  the  sovereignty  of  Congress,  though  limited  to  spec- 
ified objects,  is  plenary  as  to  those  objects,  the  power  over  com- 
merce with  foreign  nations  and  among  the  several  states  is 
vested  in  Congress  as  absolutely  as  it  would  be  in  a  single  gov- 
ernment, having  in  its  constitution  the  same  restrictions  on  the 
exercise  of  the  power  as  are  found  in  the  Constitution  of  the 
United  States." 

This  broad  statement  of  the  power  of  Congress  has  been  re- 
peatedly  affirmed  and   the   principle   applied.     Congress,   in   the 

"Western     Union     Tel.    Co.     v.  22  U.  S.  1,  6  L.  Ed.  23,  70.     See, 

Call    Pub.    Co.,    181    U.    S.    92,    4.5  also,   Howard  v.  Illinois  Cent.  R. 

L.    Ed.   765,   21    Sup.    Ct.    561.  Co.,    207    U.    S.    463,    492.    493.    52 

'Gibbons   v.    Ogden,   9   Wheat.,  L.   Ed.  297,  307,  28   Sup.  Ct.  141. 


114  Validity  and  Scope  of  the  [§  62. 

Act  to  Regulate  Commerce,  and  the  acts  amendatory  thereof  and 
supplementary  thereto,  has  not,  as  was  shown  in  Chapter  1 
hereof,  as  yet  exercised  its  full  constitutional  power.  In  the 
laws  regulating  the  liability  of  employers  in  interstate  transpor- 
tation Congress  has  fully  occupied  the  field,  and  the  decisions 
with  reference  to  the  scope  of  these  laws  are  not  always  appli- 
cable to  the  statutes  regulating  interstate  transportation  gen- 
erally.^ 

The  proviso  to  Section  1  of  the  act  to  regulate  commerce 
exempts  from  the  provisions  of  that  act  intrastate  transporta- 
tion.*^ This  exemption,  however,  does  not  leave  the  states  free 
so  to  regulate  intrastate  transportation  as  to  affect  interstate 
transportation.  This  question  was  presented  to  the  Interstate 
Commerce  Commission,  which  held  that  certain  Texas  intrastate 
rates  prescribed  under  authority  of  the  statutes  of  Texas  and 
maintained  by  carriers  serving  both  Texas  and  Louisiana,  were 
violative  of  Section  3  of  the  Act  to  Regulate  Commerce,  in  that 
such  rates  constituted  undue  and  unreasonable  prejudice  against 
shippers  in  Louisiana  and  gave  an  unreasonable  preference  to 
shippers  in  Texas.  The  Commission  ordered  the  carriers  to 
desist  from  this  discrimination. ^^  This  order  was  sustained  by 
the  Commerce  Court,  and  an  appeal  taken  to  the  Supreme 
Court. ^^  Both  in  the  opinion  of  the  Commission  and  in  that  of 
the  Commerce  Court,  mention  was  made  of  the  fact  that  the 
carriers  had  not  resisted  in  the-  courts  the  rates  prescribed  by 
the  Texas  Railroad  Commission.  This  fact  seems  not  to  have 
been  regarded  as  material  by  the  Supreme  Court,  which  Court 
upheld  the  order  of  the  Commission  on  the  broad  ground  that 
any  unjust  discrimination  however  caused  was  prohibited  by 
Congress,  and  that  no  state  could  lawfully  require  the  mainte- 
nance of  transportation  rates  within  the  state  which  unjustly  dis- 
criminated against  interstate  shippers.  The  Court  in  a  convinc- 
ing opinion  held  that  where  injurious  discrimination  resulted 
from  state  made  intrastate  rates.  Congress  is  not  bound  to  reduce 
interstate  rates  below  what  it  may  deem  to  be  a  proper  standard, 

'Sec.  332  post,  as  to  Employers'  "Tex.   &  Pac.   R.   Co.  v.  U.   S., 

Liability    Laws.  205   Fed.   380,   Op.   Com.    Ct.    No. 

'Sec.   336,   post.  68,   p.   655;   Houston   E.   &  W.  T. 

'"  Railroad    Com.    of   La.   v.    St.  R.  Co.  v.  U.  S.,  205  Fed.  391,  Op. 

L.  S.  W.  Ry.  Co.,  23  L  C.  C.  31.  Com.  Ct.  No.  67,  p.  653. 


§  62.]  Act  to  Regulate  Commerce.  115 

fair  to  the  carrier  and  to  the  pubhc ;  but  that  Congress,  and  by 
Congress  is  included  tribunals  authorized  to  act  in  prescribing 
rates,  is  entitled  to  maintain  its  own  standard  of  interstate 
rates. ^2 

Oklahoma,  Arkansas  and  Missouri,  maintaining  intrastate 
passenger  rates  of  two  cents  a  mile,  though  their  Commission 
brought  complaint  before  the  Interstate  Commerce  Commission 
alleging  that  the  interstate  passenger  rates  of  three  cents  a  mile 
into  and  through  these  states  were  unreasonable  and  discrimina- 
tory. The  Interstate  Commerce  Commission,  ha\ing  found  that 
the  evidence  failed  to  show  that  the  interstate  rates  were  unrea- 
sonable, dismissed  the  complaint.  In  the  course  of  the  opinion 
it  was  said :  ^^ 

"That  rates  established  by  state  laws  or  state  authorities,  pre- 
scribing the  charge  for  intrastate  transportation  of  persons  and 
property,  are  facts  that  we  consider,  and  that  we  respect  the 
authority  establishing  such  rates  constitute  no  valid  reason  re- 
lieving us  from  performing  the  duties  devolving  upon  this  Com- 
mission under  the  Constitution  and  laws  of  the  United  States. 
The  Constitution  of  the  United  States  reserves  to  Congress  the 
power  to  regulate  interstate  commerce,  and  Congress,  under  this 
grant  of  authority,  has  imposed  upon  this  Commission  certain 
duties.  If  any  rate  for  transportation  wholly  within  a  state  may 
be  made  the  measure  of  the  rates  when  that  transportation 
moves  from  one  state  through  or  into  another,  the  interstate 
rate  so  resulting  would  not  be  regulation  of  interstate  commerce 
by  the  authority  prescribed  by  the  Constitution,  but  by  the  state. 
If  the  function  of  this  Commission  be  to  compute  the  sum  of  in- 
trastate rates  and  prescribe  the  result  as  a  measure  of  the  inter- 
state rates,  actual  and  direct  regulation  of  interstate  commerce 
by  the  states  would  be  the  result.  That  in  the  regulation  of  in- 
terstate commerce  by  the  general  government  and  of  intrastate 
commerce  by  the  state  governments  there  result  inconveniences 
and  anomalies,  such  as  is  contended  to  exist  here,  might  be  con- 
ceded; but  such  facts,  if  they  exist,  neither  deprive  us  of  the 
power  nor  relieve  us  from  the  duty  of  performing  the  obligations 

"Houston   E.   &  W.  T.   R.   Co.  v.   A.   T.   &  S.   F.   Ry.   Co.   et   al., 

V.  U.  S.,  234  U.  S.  342,  58  L.   Ed.  31    I.    C.    C.    532,    540,    541.      See 

1341,   34   Sup.   Ct.   833.  also    Rates    on    Beer    and    Other 

"  Corp.    Com.    of    Okla.    et    al.  Malt  Products,  31  I.  C.  C.  544. 


116  \'aliditv  and  Scope  of  the  [§  63. 

imposed  u])on  us  by  laws  of  Congress  authorized  by  the  Con- 
stitution of  the  United  States. 

Were  we  at  liberty  and  inclined  to  abdicate  the  authority  and 
abandon  the  duty  imposed  upon  us  by  accepting  the  sum  of  state 
rates  as  a  measure  of  interstate  rates,  the  difficulty  would  not 
be  removed." 

§  63.  Constitutionality  of  the  Act  to  Regulate  Com- 
merce.— The  constitutional  grant  of  power  to  regulate  com- 
merce with  foreign  countries  and  between  the  states  is  plenary. 
The  absence  of  this  power  was,  as  is  well  known,  one  of  the 
principal  reasons  for  dissatisfaction  with  the  confederacy  ex- 
isting prior  to  the  adoption  of  our  constitution.  Just  what 
powers  could  be  constitutionally  delegated  or  given  to  the  com- 
mission was  the  question  to  be  determined  by  the  framers  of  the 
acts  to  regulate  commerce.  It  has  been  held  that  to  prescribe 
rates  for  the  future  is  a  legislative  power,  to  determine  whether 
or  not  a  rate  is  reasonable  is  a  judicial  question. i"*  The  legisla- 
ture of  a  state  may  directly  prescribe  maximum  rates,  or  such 
power  may  be  delegated  to  a  commission. ^-^  Prior  to  the 
amendment  known  as  the  Hepburn  Act  the  Interstate  Commerce 
Commission  was  a  mere  administrative  body,  with  no  power 
to  fix  rates.  It  could  make  findings  and  declare  a  particular  rate 
unreasonable,  these  findings  were  f^rima  facie  true  and  were  en- 
titled to  the  "strength  due  to  the  judgment  of  a  tribunal  ap- 
pointed by  law  and  informed  by  experience. '"^'^  The  original 
act  was  held  to  be  valid  by  the  Supreme  Court. ^"  The  court  in 
the  course  of  the  opinion  said : 

"Interpreting  the  Interstate  Commerce  Act  as  applicable,  and 
as  intended  to  apply,  only  to  matters  involved  in  the  regulation 
of  commerce,  and  which  Congress  may  rightfully  subject  to  in- 
vestigation by  a  commission  established  for  the  purpose  of  en- 

"  Chicago.   M.   &   St.   P.   R.   Co.  334.    1191;    Georgia   R.    &   B.    Co. 

V.    Minnesota,    134    U.    S.    418,    33  z\    Smith,    70    Ga.    694,    128    U.    S. 

L.    Ed.   970,    10   Sup.    Ct.   462,    702.  174,  32  L.   Ed.  377,  9  Sup.   Ct.  47. 

Prentis     v.    Atlantic     C.     L.    Co.,  '**  Illinois    Cent.    R.    Co.    v.    In- 

211    U.    S.   210,    53    L.    Ed.    150,   29  terstate     Com.     Com.,    206    U.    S. 

Sup.    Ct.    67.  441,   454,   51    L.    Ed.   1128,    1134,   27 

"  Munn    V.    Illinois,    94    U.     S.  Sup.   Ct.   700. 

4   Otto   113,  24   L.    Ed.   77;    Stone  "Interstate       Com.       Com.      v. 

V.    Farmers    L.    &  T.    Co.,    116   U.  Brimson,  154  U.  S.  447,  38  L.  Ed. 

S.   307,   29   L.    Ed.   636,   6   Sup.    Ct.  1047,    14    Sup.    Ct.    1125. 


§  63.]  Act  to  Regulate  Commerce.  117 

forcing  that  act,  we  are  unable  to  say  that  its  provisions  are  not 
appropriate  and  plainly  adapted  to  the  protection  of  interstate 
commerce  from  burdens  that  are  or  may  be,  directly  or  indirectly 
imposed  upon  it  by  means  of  unjust  and  unreasonable  discrim- 
inations, charges,  and  preferences.  Congress  is  not  limited  in 
its  employment  of  means  to  those  that  are  absolutely  essential 
to  the  accomplishment  of  objects  within  the  scope  of  the  powers 
granted  to  it.  It  is  a  settled  principle  of  constitutional  law  that 
'the  government  which  has  a  right  to  do  an  act,  and  has  im- 
posed on  it  the  duty  of  performing  that  act,  must,  according  to 
the  dictates  of  reason,  be  allowed  to  select  the  means ;  and  those 
who  contend  that  it  may  not  select  any  appropriate  means,  that 
one  particular  mode  of  effecting  the  object  is  excepted,  take 
upon  themselves  the  burden  of  establishing  that  exception.' 
McCullough  V.  Maryland,  17  U.  S.  4  Wheat.  316  (4  L.  Ed. 
579,  602).  The  test  of  the  power  of  Congress  is  not  the  judg- 
ment of  the  courts  that  particular  means  are  not  the  best  that 
could  have  been  employed  to  effect  the  end  contemplated  by  the 
legislative  department.  The  judiciary  can  only  inquire  whether 
the  means  devised  in  the  execution  of  a  power  granted  are  for- 
bidden by  the  constitution.  It  cannot  go  beyond  that  inquiry 
without  entrenching  upon  the  domain  of  another  department  of 
government.  That  it  may  not  do  with  safety  to  our  institu- 
tions. Union  Pac.  R.  Co.  v.  United  States  ("Sinking  Fund 
Cases")  99  U.  S.  (9  Otto.)  700,  718,  25  L.  Ed.  496,  501." 

In  United  States  v.  Delaware  &  Hudson  Co.,^^  it  was  con- 
tended that  the  so-called  commodity  clause  of  section  one  of  the 
present  act  was  unconstitutional,  one  of  the  grounds  for  such 
contention  being  that  the  penalties  prescribed  by  the  amended 
act  brought  it  within  the  decision  of  the  Supreme  Court  in  Ex 
parte  Young,  209  U.  S.  123,  52  L.  Ed.  714,  28  Sup.  Ct.  441.  The 
clause  as  construed  by  the  Supreme  Court,  was  held  valid.  On 
the  question  of  the  effect  of  the  penalties,  at  page  417  of  the 
opinion,  the  court  said : 

"With  reference  to  the  contention  tliat  the  commodities  clause 
is  void  because  of  the  nature  and  character  of  the  penalties 
which  it  imposes  for  violations  of  its  provisions,  within  the 
ruling  in  Ex  parte  Young,  209  U.  S.  123,  we  think  it  also  suffices 

'*  United   States   v.   Delaware   &       Ed.   836,    29    Sup.    Ct.   527. 
Hudson   Co.,  213  U.  S.  366,  53   L. 


118  Validity  and  Scope  of  the  [§  63 

to  say  that  even  if  the  delay  which  the  clause  provided  should 
elapse  between  its  enactment  and  the  going  into  effect  of  the 
same  does  not  absolutely  exclude  the  clause  from  the  ruling  in 
Ex  parte  Young,  a  question  w^hich  we  do  not  feel  called  upon 
to  decide,  nevertheless  the  proposition  is  without  merit,  because 

(a)  no  penalties  are  sought  to  be  recovered  in  these  cases,  and 

(b)  the  question  of  the  constitutionality  of  the  clause  relating 
to  penalties  is  wholly  separate  from  the  remainder  of  the  clause, 
and,  therefore,  may  be  left  to  be  determined,  should  an  eft'ort 
to  enforce  such  penalties  be  made." 

Subsequently  the  right  to  enforce  this  clause  as  construed 
was  upheld  by  the  Supreme  Court.^^  The  constitutionality  of 
the  act  generally  was  interestingly  and  acciirately  stated  by  Judge 
Severens  at  circuit  in  an  opinion  wherein  he  shows  the  necessity 
for  Congress  to  adopt  some  such  scheme  as  the  Act  to  Regulate 
Commerce,  and  in  which  opinion  he  says :  -^ 

"It  would  have  been  impossible  for  Congress  to  have  foreseen 
the  multitude  of  questions  depending  upon  the  special  facts  pre- 
sented sometimes  in  one  complication  and  sometimes  in  another, 
and  declare  a  single  rule  applicable  to  each."' 

The  Supreme  Court  has  held  that  Section  20  of  the  provision 
of  the  Act  to  Regulate  Commerce  as  amended  by  the  Act  of  June 
29,  1906  -^  is  valid  and  not  unconstitutional  as  a  delegation  of 
legislative  power,  and  that  the  requirement  that  carriers  doing 

'"United  States  v.  Lehigh  V.  I.  C.  C.  231.  The  Commerce 
R.  Co.,  220  U.  S.  257,  55  L.  Ed.  Court  set  aside  the  order  of  the 
458,  31  Sup.  Ct.  387;  Delaware  L.  Commission,  without  however 
&  W.  R.  Co.  V.  United  States,  disagreeing  with  the  circuit 
231  U.  S.  363,  58  L.  Ed.  2G9,  34  judges  as  to  the  validity  of  the 
Sup.  Ct.  65;  United  States  v.  Act  to  Regulate  Commerce,  Lou- 
Delaware  L.  &  W.  R.  Co.,  238  isville  &  N.  R.  Co.  v.  Interstate 
U.  S.  511,  59  L.  Ed.  — ,  35  Sup.  Com.  Com.,  195  Fed.  541,  Opin- 
Ct.  873.  For  a  further  histor\'  of  ions  Commerce  Court  Nos.  4, 
litigation  under  this  clause,  see  325  and  375.  For  opinion  re- 
United  States  V.  Lehigh  Valley  versing  the  Commerce  Court: 
R.  Co.  (221  Fed.  399).  Interstate    Com.    Com.   v.    Louis- 

=»  Louisville  &  N.  R.  Co.  v.  In-  ville   &  N.  R.   Co.,  227  U.   S.   88, 

terstate  Com.  Com.,  184  Fed.  118,  57    L.    Ed.   431,   33    Sup.    Ct.    185. 

122.      For    opinion    of   the    Inter-  See   also   United   States   v.   Great 

state    Commerce    Commission    in  N.   R.    Co.,    157   Fed.  288,   291. 

this  case  see  New  Orleans  Board  ^  Post,  Sec.   1432,  432. 
of  Trade  v.   L.   &  N.   R.    Co.,   17 


§  63.]  Act  to  Regulate  Commerce.  119 

both  interstate  and  intrastate  business  should  render  to  the  Inter- 
state Commerce  Commission  accounts  of  all  their  business,  was 
not  beyond  the  power  of  Congress,--  and  the  provision  subjecting 
corporations  to  criminal  prosecution  are  valid. ^-^ 

In  Honohilu  R.  T.  Co.  v.  Hawaii  -■*  the  Supreme  Court  said : 
"The  business  conducted  by  the  transit  company  is  not  purely 
private.  It  is  of  that  class  so  affected  by  a  public  interest  that 
it  is  subject,  within  constitutional  limits,  to  the  governmental 
power  of  regulation.  This  power  of  regulation  may  be  exercised 
to  control,  among  other  things,  the  time  of  the  running  of  cars. 
It  is  a  power  legislative  in  its  character  and  may  be  exercised 
directly  by  the  legislature  itself.  But  the  legislature  may  dele- 
gate to  an  administrative  body  the  execution  in  detail  of  the 
legislative  power  of  regulation.  Reagan  v.  Farmers'  Loan  & 
Trust  Co.,  154  U.  S.  362,  393,  394,  38  L.  Ed.  1014,  14  Sup.  Ct. 
1047;  Interstate  Commerce  Com.  v.  Cincinnati,  New  Orleans  & 
Texas  Pacific  Railway  Company,  167  U.  S.  479,  494,  42  L.  Ed. 
243,  17  Sup.  Ct.  896." 

What  effect  the  penalties  prescribed  in  the  act  may  have  on 
its  constitutionality  in  view  of  the  Young  case  supra,  is  a  ques- 
tion that  the  act  itself  answers.  The  danger  of  incurring  ruin- 
ous penalties  pointed  out  in  the  Young  case  does  not  exist  in  the 
act  tp  regulate  commerce.  In  this  act  the  rates  prescribed  by  the 
commission  become  effective  only  after  thirty  days'  notice,  dur- 
ing which  time  the  order  fixing  the  rates  may  "be  suspended 
or  set  aside  by  a  court  of  competent  jurisdiction,"  if  the  rate 
prescribed  be  unlawful.  The  venue  of  suits  "to  enjoin,  set  aside, 
annul,  or  suspend  any  order  or  requirement  of  the  commission" 
is  fixed ;  and  suits  "may  be  brought  at  any  time  after  such  order 


"  Interstate      Com.       Com.      v.  ions   Commerce  Court  No.  56,  p. 

Goodrich   Transit    Co.,   224   U.   S.  641,    204    Fed.    641. 

194,    56    L.    Ed.    729,    32    Sup.    Ct.  ''  New     York     C.     R.     Co.  .  v. 

436,      reversing      the      Commerce  United  States,  212  U.  S.  481,  492, 

Court  in  Goodrich  Transit  Co.  v.  53    L.    Ed.    613,    29    Sup.    Ct.    304, 

Interstate    Com.    Com.,    Nos.    21,  cited  in   United   States  v.  Adams 

22,  23,  24  Opinions  of  Commerce  Exp.    Co.,   229   U.    S.   381,   390,   57 

Court  95,  190  Fed.  943.     See  also  L.   Ed.   1237,   33    Sup.   Ct.   878. 

Kansas     City     Sou.     Ry.     Co.     v.  "  Honoluhi  R.  T.  Co.  v.  Hawaii, 

United   States,   231   U.    S.   423,   58  211   U.   S.   282,   53   L.   Ed.   186.   29 

L.    Ed.   296,   34    Sup.    Ct.    125,   af-  Sup.   Ct.  55. 
firming    same    styled    case    Opin- 


120  \'ALir)iTv  AND  Scope  of  the  [§  64. 

is  promulgated.-^  It  would  seem  that  the  carriers  have  full  op- 
])ortunity  to  test  an  order  before  feeling  compelled  by  the  possi- 
bility of  penalties  to  obey  it. 

The  validity  of  the  amended  fourth  section  of  the  act  was 
sustained  in  a  forcible  opinion  of  the  Supreme  Court. ^"^ 

§  64.  Reasons  for  the  Act  to  Regulate  Commerce. — 
Prior  to  the  act  of  February  4,  1887,-'  carriers  were  free  to  make 
such  rates  on  interstate  transportation  as  they  saw  fit,  subject  only 
to  the  power  of  the  courts  under  the  common  law,  at  the  suit 
of  individuals  to  prevent  irreparable  damage  or  give  redress  for 
unreasonable  or  unjustly  discriminatory  rates. -^ 

In  Tex.  &  Pac.  R.  Co.  v.  Interstate  Commerce  Commission,-^ 
the  Supreme  Court,  speaking  of  this  act,  said : 

"It  may  be  well  to  advert  to  the  causes  which  induced  its  en- 
actment. They  chiefly  grew  out  of  the  use  of  railroads  as  the 
principal  modern  instrumentality  of  commerce.  While  shippers 
of  merchandise  are  under  no  legal  necessity  to  use  railroads, 
practically  they  are.  The  demand  for  speedy  and  prompt  move- 
ment virtually  forbids  the  employment  of  slow  and  old-fashioned 
methods  of  transportation,  at  least  in  the  case  of  the  more  valu- 
able articles  of  traffic.  At  the  same  time,  the  immense  outlay  of 
money  required  to  build  and  maintain  railroads,  and  the  neces- 
sity of  resorting,  in  securing  the  rights  of  way,  to  the  power  of 
eminent  domain,  in  ettect  disable  individual  merchants  and  ship- 
pers from  themselves  providing  such  means  of  carriage.  From 
the  very  nature  of  the  case,  therefore,  railroads  are  monopolies, 
and  the  evils  that  usually  accompany  monopolies  soon  began  to 
show  themselves,  and  were  the  cause  of  loud  complaints.     The 

-"Sees.    15,   16,    of   act    to    regu-  '*  Texas  &  P.  R.  Co.  v.  Abilene 

late     commerce.       See     post.     39G  Cotton  Oil   Co.,  204  U.  S.  426,  51 

and  411.  L.    Ed.    553.    27    Sup.    Ct.    350,    9 

="  United    States   v.   A.   T.    &   S.  Ann.   Cas.   1075;  Tift  v.  Southern 

F.    Ry.    Co.,   234    U.    S.   476,    58   L.  Ry.    Co.,    123    Fed.    789,    138    Fed. 

Ed.  1408,  34  Sup.   Ct.  986.  revers-  753:    Western   Union   Tel.    Co.   r. 

ing  A.  T.   &   S.   F.   Ry.   Co.  v.  U.  Call    Pub.    Co.,    181    U.    S.    92,    45 

S..    191    Fed.    856.    Op.    Com.    Ct.  L.     Ed.     765,     21,    Sup.     Ct.    561; 

Nos.   50,    51,   p.   229,   and    sustain-  United    States   v.    Michigan   Cent, 

ing  orders  of  the   Commission  in  R.  Co.,  122   Fed.  544. 

Railroad     Com.    of    Nev.    t.     So.  *"  Texas   &  P.   R.   Co.   z\   Inter- 

Pac.    Co.,    21    I.    C.    C.    329;    Spo-  state   Com.   Com.,   162   U.   S.   197, 

kane.    City    of   v.    N.    P.    Ry.    Co.,  210.   211,   40   L.    Ed.   940,   944,   945. 

21    I.    C.    C.    400.  16    Sup.    Ct.    666,    5    I.    C.    R.    405. 

^  Chapter   9,   post. 


§  64.]  Act  to  Regulate  Commerce.  121 

companies  owning  the  railroads  were  charged,  and  sometimes 
truthfully,  with  making  unjust  discriminations  between  shippers 
and  localities,  with  making  secret  agreements  with  some  to  the 
detriment  of  other  patrons,  and  with  making  pools  or  combina- 
tions with  each  other,  leading  to  the  oppression  of  entire  com- 
munities. 

"Some  of  these  mischiefs  were  partially  remedied  by  special 
provisions  inserted  in  the  charters  of  the  companies  and  by 
general  enactments  by  the  several  states,  such  as  clauses  restrict- 
ing the  rates  of  toll  and  forbidding  railroad  companies  from  be- 
coming concerned  in  the  sale  or  production  of  articles  carried 
and  from  making  unjust  preferences.  Relief,  to  some  extent, 
was  likewise  found  in  the  action  of  the  courts  in  enforcing  the 
principles  of  the  common  law  applicable  to  common  carriers — 
particularly  that  one  which  required  uniformity  of  treatment  in 
like  conditions  of  service. 

"As,  however,  the  powers  of  the  states  were  restricted  to  their 
own  territories,  and  did  not  enable  them  to  efficiently  control  the 
management  of  great  corporations  whose  roads  extend  through 
the  entire  country,  there  was  a  general  demand  that  Congress, 
in  the  exercise  of  its  plenary  power  over  the  subject  of  foreign 
and  interstate  commerce,  should  deal  with  the  evils  complained 
of  by  a  general  enactment,  and  the  statute  in  question  was  the 
result." 

Amendatory  and  supplemental  acts  have  enlarged  the  powers 
of  the  Commission,  but  these  additions  to  the  Commission's 
powers  under  the  Interstate  Commerce  Act  have  had  in  view 
the  purpose  to  prevent  discrimination  and  to  require  certainty 
and  stability  in  the  rates  charged.  The  amendment  authorizing 
the  supervision  and  standardization  of  the  accounts  of  carriers  ^"^ 
had  for  its  purpose  to  enable  the  Commission  better  to  perform 
its  duties  respecting  the  regulation  of  carriers.^! 

In  the  Minnesota  Rate  Cases, ''^-  the  fact  that  the  purpose  of 

^  Sec.    433,    post.  and      amendatory,      see      Armour 

'^  Kansas    City    S.    Ry.    Co.    v.  Packing    Co.    v.    United     States, 

United    States,   231   U.   S.   423,   58  209    U.    S.    56,    52    L.    Ed.    681,   28 

L.  Ed.  296,  34  Sup.  Ct.  125.  Sup.    Ct.    428;    United    States    v. 

''  Simpson    v.    Shepard,    230    U.  Pacific  &  A.  Ry.  &  Nav.  Co.,  228 

S.    352,    57    L.    Ed.    1511,    33    Sup.  U.    S.   87,    108,    57    L.    Ed.    742,    33 

Ct.     729.      For     statement     as     to  Sup.  Ct.  443. 

the   purpose   of   the   acts   original 


122  Validity  and  Scope  of  the  [§  65. 

the  Act  was  not  to  include  intrastate  transportation  was  definitely 
stated. 

The  Alinnesota  Rate  Cases  dealt  with  the  question  of  the  con- 
stitutionality of  rates  prescribed  by  state  authority  applicable 
only  within  the  state.  A  difterent  question  is  presented  when 
there  is  involved  the  relationship  of  interstate  rates  with  intras- 
tate rates.  AA'hen  such  a  question  is  presented,  as  was  held  in 
the  Shreveport  case  (supra  Sec.  62),  the  state  rates  must  not 
unlawfully  discriminate  against  interstate  shippers,  and  when 
they  do  the  Interstate  Commerce  Commission  may  grant  relief. 

§  65.  Carriers  Included  in  the  Act. — The  original  act  ap- 
plied only  to  transportation  wholly  by  railroad,  or  partly  by  rail- 
road and  partly  by  water.  Included  in  the  definition  of  railroads 
are  bridges  and  ferries  used  or  operated  in  connection  therewith, 
the  line  in  use  by  any  corporation  operating  a  railroad,  whether 
owned  or  operated  under  a  contract,  agreement,  or  lease,  and  all 
instrumentalities  of  shipment  or  carriage.  The  present  act  ex- 
tends the  law  to  apply  to  the  transportation  of  oil  or  other  com- 
modities, except  water  and  gas,  by  means  of  pipe  lines  or  partly 
by  pipe  lines  and  partly  by  rail  or  water,  and  includes  express 
companies,  telegraph,  telephone  and  cable  companies,  whether 
wire  or  wireless ;  all  switches,  spurs,  tracks  and  terminal  facilities 
of  every  kind  used  or  necessary  in  the  transportation  of  the 
persons  or  property  designated,  and  also  all  freight  depots,  yards, 
and  grounds,  used  or  necessary  in  the  transportation  or  delivery 
of  any  of  said  property ;  cars  and  other  vehicles  and  all  instru- 
mentalities and  facilities  of  shipment  or  carriage,  irrespective  of 
ownership  or  of  any  contract,  express  or  implied,  for  the  use 
thereof,  and  all  services  in  connection  with  the  receipt,  delivery, 
elevation  and  transfer  in  transit,  ventilation,  refrigeration  or 
icing,  storage  and  handling  of  property  transported. 

Under  the  act,  foreign  carriers  engaged  in  transporting  be- 
tween points  within  and  points  without  the  United  States  are 
subject  to  the  regulations  prescribed;"-^  water  carriers  are  sub- 

^  Re  Investigation  of  Acts  States  to  Canada — is  not  within 
Grand  Trunk  Ry.  of  Canada.  3  the  jurisdiction  of  the  Commis- 
I.  C.  C.  89,  2  I.  C.  R.  496.  A  sion.  International  Paper  Co.  v. 
rate,  however,  made  by  the  Cana-  D.  &  H.  Co.,  33  I.  C.  C.  270. 
dian  Commission  applicable  in  For  a  full  discussion  of  this  sub- 
Canada — though  part  of  the  ject,  see  Carey  Mfgr.  Co.  v.  G. 
through     rate    from     the     United  T.  W.  Ry.  Co.,  36  I.  C.  C.  203. 


§  65. 


Act  to  Regulate  Commerce. 


123 


ject  thereto  when  the  transportation  is  partly  by  rail  and  partly 
by  water,  when  both  being  under  a  common  contract,  management 
or  arrangement  for  a  continuous  carriage  or  shipment. ^^  Under 
the  Panama  Canal  Actj^-*  of  August  24,  1912,  the  Commission  is 
given  jurisdiction  over  the  transportation  of  rail  and  water 
carriers  when  property  is  transported  from  point  to  point  in  the 
United  States  by  rail  and  water,  through  the  Panama  Canal  or 
othenvise.  The  extent  of  this  jurisdiction  is  stated  in  the  act, 
and  the  Commission  has  exercised  the  jurisdiction  thus  con- 
ferred.^*^ A  corporation  organized  to  construct  and  maintain  a 
bridge  across  a  river  running  between  two  states,  and  which 
corporation  owns  no  cars,  but  merely  furnishes  a  highway  over 
which  common  carriers  and  others  may  transport  goods,  was  held 
not  to  be  within  the  provisions  of  the  act.^' 

Carriers  by  water  between  ports  of  dififerent  states  under  joint 
rates  with  railroads,  which  rates  are  filed  with  the  Interstate 
Commerce  Commission,  are  within  the  purview^  of  the  Act  to 
Regulate  Commerce,  although  such  carriers  are  incorporated 
under  the  laws  of  a  particular  state. ^® 

In  the  Pipe  line  cases  ^^  the  Supreme  Court  sustained  the  ju- 
risdiction of  the  Commission  over  pipe  line  carriers  transporting 
oil  in  interstate  commerce. 

A  terminal  company,  part  of  a  railroad  and  steamship  system, 
is  within  the  act,'**'  and  so  is  a  rate  which  includes  delivery  on 
boat  for  interstate  transportation.'*^ 


'*  Sec.   335,  post. 

^  Sec.  375,  post. 

"^Sec.  224,  post,  Augusta  &  Sa- 
vannah S.  S.  Co.  V.  O.  S.  S.  Co., 
26    I.    C.    C.    380. 

"  Kentucky  &  I.  Bridge  Co.  v. 
Louisville  &  N.  R.  Co.,  37  Fed. 
567,  617,  2  L.  R.  A.  289,  2  I.  C. 
R.    351. 

^'  Interstate  Com.  Com.  v. 
Goodrich  Transit  Co.,  224  U.  S. 
194,  56  L.  Ed.  729,  32  Sup.  Ct. 
436,  reversing  Goodrich  Transit 
Co.  V.  Interstate  Com.  Com.,  190 
Fed.  943,  Commerce  Court  Opin- 
ions 21  to  24,  p.  95.  Within  the 
meaning  of  the  Anti-Trust  stat- 
utes, tugs  employed  in  towing 
vessels      engaged      in      interstate 


commerce  are  themselves  instru- 
mentalities of  such  commerce. 
United  S.tates  v.  Great  Lakes 
Towing  Co.,  208  Fed.  733. 
Where  there  is  no  common  or 
joint  arrangement,  water  carri- 
ers held  not  within  the  Act,  Mu- 
tual Transit  Co.  v.  United  States, 
178  Fed.  664. 

'"United  States  v.  Ohio  Oil 
Co.,  234  U.  S.  548,  58  L.  Ed.  1394, 
34    Sup.    Ct.    956. 

■""  Southern  Pacific  Terminal 
Co.  V.  Interstate  Com.  Com.,  219 
U.  S.  498,  55  L.  Ed.  310,  31  Sup. 
Ct.   279. 

*'  R.  R.  Com.  of  Ohio  v.  Worth- 
ington,  187  Fed.  965,  110  C.  C. 
A.    85.      See   also.    Note    58,   post. 


124 


Validity  and  Scope  of  the 


66. 


A  stock  yard  company,  owning  and  operating  a  railroad  system 
which  transports  cars  to  and  from  trunk  Hnes  which  operate  cars 
in  interstate  transportation,  is  within  the  act.^- 

That  street  railways  were  not  included  within  the  law  prior 
to  the  amendatory  Act  of  June  18,  1910,^"  has  been  determined 
by  the  Supreme  Court,  although  the  effect  of  that  act  on  the 
question  was  left  undecided."*^ 

The  commission  has  frequently  acted  under  the  power  granted 
it  over  express  companies,  which  are  now  specially  included. ^^ 

The  Act  to  Regulate  Commerce  is,  however,  not  so  broad 
as  the  safety  Appliance  and  Employers'  Liability  Acts,  and  Con- 
gress has  expressly,  by  the  proviso  to  Section  1,  excluded  intra- 
state Commerce. ^"^ 

§  66.  Carriers'  Duties  under  the  Act.— It  is  the  duty  of 
every  carrier  subject  to  the  provision  of  the  law  to  provide  and 
furnish  transportation  upon  reasonable  request  therefor,  and 
to  establish  through  routes  and  just  and  reasonable  rates  appli- 
cable thereto. 

All  charges  made  for  any  service  rendered  or  to  be  rendered 
in  the  transportation  of  passengers  or  property  and  for  the  trans- 


*^  United  States  v.  Union  Stock 
Yards,  226  U.  S.  286,  57  L.  Ed. 
226,  33  Sup.  Ct.  83;  Union  Stock 
Yard  &  Transit  Co.  v.  United 
States,  192  Fed.  330,  Commerce 
Court  Opinion  No.  15,  pp.  189 
and  225.  See  also  Manufacturers 
Ry.  Co.  V.  St.  Louis  I..  M.  &  S. 
Ry.  Co.,  21  I.  C.  C.  304  and  cases 
cited. 

*'' Post,   Sec.   337. 

"Omaha  &  C.  B.  Street  Ry. 
Co.  V.  Interstate  Com.  Com.,  230 
U.  S.  324,  57  L.  Ed.  1501,  33 
Sup.  Ct.  890,  40  L.  R.  A.  (N. 
S.)  385  reversing  same  styled 
case,  191  Fed.  40,  Com- 
merce Court  Opinion  No.  25,  p. 
147,  and  affirming  same  styled 
case,  179  Fed.  243,  and  setting 
aside  order  of  Interstate  Com- 
merce Commission  in  West  End 
Improvement  Club  r.  Omaha  &  C. 


B.  Street  Ry.  Co.,  17  I.  C.  C. 
239.  See  also  Wilson  v.  Rock 
Creek  Ry.  Co..  7  I.  C.  C.  83,  and 
see  South  Covington  R.  Co.  v. 
Covington,  235  U.  S.  537,  59  L. 
Ed.   — ,   35   Sup.   Ct.   158. 

"American  Exp.  Co.  z'.  United 
States,  212  U.  S.  522,  53  L.  Ed. 
635,  29  Sup.  Ct.  315;  Barrett  v. 
New  York  City,  183  Fed.  793. 
Nor  does  it  make  any  difference 
that  the  company  is  not  a  cor- 
poration. United  States  v.  Adams 
Exp.  Co.,  239  U.  S.  381,  57  L. 
Ed.    1237,    33    Sup.    Ct.    878. 

*"  Pacific  C.  Ry.  Co.  z:  United 
States.  173  Fed.  448;  United 
States  V.  Union  Stock  Yards  Co., 
192  Fed.  330,  339,  Commerce 
Court  Opinion  No.  15,  p.  189.225; 
Simpson  v.  Shepard,  230  U.  S. 
352,  57  L.  Ed.  1511,  33  Sup.  Ct. 
729;    Sec.    61.   supra. 


§  66.]  Act  to  Regulate  Commerce.  125 

mission  of  messages  by  telegraph,  telephone  or  cable,  as  afore- 
said, or  in  connection  therewith,  shall  be  just  and  reasonable; 
and  every  unjust  and  unreasonable  charge  for  such  service  or 
any  part  thereof  is  prohibited  and  declared  to  be  unlawful. 

Just  and  reasonable  regulations  and  practices  affecting  classi- 
fication of  commodities  must  be  established,  observed  and  en- 
forced. 

Railroads  are  _  prohibited  from  transporting  certain  commodi- 
ties in  which  they  are  interested.  Switch  connections,  under  cer- 
tain circumstances,  must  be  made  with  other  carriers  and  with 
shippers.  Rebates  and  other  forms  of  discrimination  are  pro- 
hibited. Undue  and  unreasonable  preferences  to  persons,  places 
or  particular  kinds  of  traffic  are  illegal ;  and,  under  substantially 
similar  circumstances  and  conditions,  no  greater  charge  shall  be 
made  for  a  shorter  than  a  longer  haul,  the  shorter  being  included 
in  the  longer.  Transportation  of  freight  must  be  continuous, 
pooling  is  prohibited,  and  rates  are  required  to  be  published, 
posted  and  maintained. 

Carriers  included  in  the  Act  must  keep  accounts  according  to 
requirements  prescribed  by  the  Commission,  and  must  make  re- 
ports to  the  Commission  as  required.^ '^ 

The  Supreme  Court,  speaking  of  the  Act,  has  said: -^^ 

"It  cannot  be  challenged  that  the  great  purpose  of  the  act  to 
regulate  commerce,  whilst  seeking  to  prevent  unjust  and  unrea- 
sonable rates,  was  to  secure  equality  of  rates  to  all,  and  to  de- 
stroy favoritism,  these  last  being  accomplished  by  requiring  the 
publication  of  tariffs,  and  by  prohibiting  secret  departures  from 
such  tariffs,  and  forbidding  rebates,  preferences,  and  all  other 
forms  of  undue  discrimination.  To  this  extent  and  for  these 
purposes  the  statute  was  remedial  and  is,  therefore,  entitled  to 
receive  that  interpretation  which  reasonably  accomplishes  the 
_great  public  purpose  which  it  was  enacted  to  subserve." 

The  Act,  while  repeating  and  adopting  the  common-law  rule 


*■''  Post     chapter     9.       And     see,  Ry.    v.    United    States,    231    U.    S. 

Interstate    Com.    Com.   v.     Good-  423,    58    L.    Ed.    296,    34    Sup.    Ct. 

rich    Transit    Co.,   224    U.    S.    194,  125. 

56    L.    Ed.    729,    32    Sup.    Ct.    436;  **  New  York  N.  H.  &  H.  R.  Co. 

United  States  v.  Adams  Exp.  Co.,  v.   Interstate   Com.   Com.,  200   U. 

229  U.   S.   381,   57   L.   Ed.   1237,   33  S.    3&1,    391,    50    L.    Ed.    515,    521, 

.Sup.    Ct.    878;    Kansas    City    So.  26   Sup.   Ct.   272. 


126  Validity  and  Scope  of  the  [§  67. 

that  rates  should  be  reasonable,  had  as  its  principal  purpose  the 
prevention  of  unjust  discrimination  and  undue  and  unreasonable 
preference.  The  shipper  could  protect  himself  more  easily  from 
unreasonable  rates  than  he  could  from  secret  and  ruinous  dis- 
crimination against  him  and  preferences  to  his  competitor.  Equal- 
ity of  treatment  and  the  "open  gateway  policy"  ^^  are  sought  to 
be  obtained  by  the  act. 

All  the  provisions  of  the  original,  amendatory  and  supple- 
mental acts  regulating  interstate  transportation  have  as  their  pur- 
pose reasonable  and  non-discriminatory  charges.  To  effectuate 
these  purposes  the  law  prescribes  rules  and  authorizes  the  Com- 
mission to  make  other  rules  and  regulations  by  which  the  pur- 
poses may.be  accomplished. 

§  67.  What  Transportation  Included  in  the  Act. — The 
transportation  included  in  the  act  is  that  "from  one  state  or 
territory  of  the  United  States,  or  the  District  of  Columbia,  to 
any  other  state  or  territory  of  the  United  States,  or  the  District 
of  Columbia,  or  from  one  place  in  a  territory  to  another  place 
in  the  same  territory,  or  from  any  place  in  the  United  States 
to  an  adjacent  foreign  country  *  '^  *  and  carried  from  such 
place  to  a  port  of  trans-shipment,  or  shipped  from  a  foreign 
country  to  any  place  in  the  United  States  and  carried  to  such 
place  from  a  port  of  entry  either  in  the  United  States  or  an  adja- 
cent foreign  country."  The  above  quotation  is  taken  from  sec- 
tion one  of  the  original  act,  except  the  phrase  applying  to  trans- 
portation between  places  in  the  same  territory  was  added  by  the 
amendment  of  June  29,  1906.^'^ 

By  the  Act  of  1910,  telegraph,  telephone  and  cable  companies 
and  the  transportation  of  oil  were  included  in  the  act.^i  f^e 
Panama  Canal  Act  extended  jurisdiction  to  water  carriers. 

The  proviso  of   section  one  of  the  original  act  was  retained 


"  Railway    V.    R.    Co.    :■.    Dela-  lating    to    transportation    of    oil, 

ware,    L.    &  W.   R.   Co.,   14   I.   C.  see     Prarie    Oil    &    Gas.     Co.   v. 

C.     191,     19-1.       And,     see,    also,  United     States,     204     Fed.     798, 

Rates  for  Transportation  of  An-  Commerce    Court    Opinion.      Act 

thracite  Coal,  35  I.  C.  C.  220,  289.  held   valid   and    Commerce   Court 

'''' Common     control,     etc.,    dis-  reversed;  the  Pipe  Line  Cases,  U. 

cussed.      Standard      Oil      Co.      v.  S.  v.  Ohio  Oil  Co.,  234  U.  S.  548, 

United  States,  179  Fed.  614.     For  58  L.  Ed.  1394,  34  Sup.  Ct.  956. 


a   discussion   of  the  provision   re-  ^^  Post,    Sec. 


335. 


§  67.]  •      Act  to  Regulate  Commerce.  127 

in  its  original  form  ''-  until  the  Act  of  1910,  when  it  was  stated 
in  this  language : 

"Provided,  liozvever,  That  the  provisions  of  this  act  shall  not 
apply  to  the  transportation  of  passengers  or  property,  or  to 
the  receiving,  delivering,  storage  or  handling  of  property 
wholly  within  one  state  and  not  shipped  to  or  from  a  foreign 
country  from  or  to  any  state  or  territory  as  aforesaid,  nor  shall 
they  apply  to  the  transmission  of  messages  by  telephone,  tele- 
graph, or  cable  wholly  within  one  state  and  not  transmitted  to 
or  from  a  foreign  country  from  or  to  any  state  or  territory  as 
aforesaid." 

That  this  provision  leaves  to  the  states  the  regulation  of  in- 
trastate commerce  has  already  been  shown. ^^ 

The  Daniel  Ball  ^'^  is  a  case  frequently  cited  and  sometimes 
given  a  construction  that  is  of  doubtful  correctness.  The  libel 
was  brought  by  the  United  States  for  penalties  under  the  act  of 
July  7,  1838,  5  Stat.  L.  304,  recjuiring  a  license  for  vessels  "to 
transport  any  merchandise  or  passengers  upon  the  bays,  lakes, 
rivers  or  other  navigable  waters  of  the  United  States."  Two 
questions  were  presented,  one  being  that  the  waters  upon  which 
the  steamer  plied  were  not  "navigable  waters  of  the  United 
States."  This  question  being  answered  by  the  court's  holding 
that  such  waters  were  navigable  waters  within  the  meaning  of 
the  act,  it  was  further  contended  that  the  steamer  was  engaged 
wholly  in  internal  commerce.  It  was  'admitted  that  she  received 
freight  originating  beyond  the  state  destined  to  points  in  the 
state  and  also  received  freight  in  the  state  destined  to  points 
beyond.  The  language  of  Mr.  Justice  Field  must  be  construed 
in  connection  with  the  facts  of  the  case,  and  it  will  be  noticed 
that  he  stresses  the  fact  that  the  transportation  was  "on  the 
navigable  waters  of  the  United  States."  In  the  further  course 
of  the  opinion  it  was  said : 

"It  is  said  that  if  the  position  here  asserted  be  sustained, 
there  is  no  such  thing  as  the  domestic  trade  of  a  state;  that  Con- 
gress may  take  the  entire  control  of  the  commerce  of  the  coun- 
try, and  extend  its  regulations  to  the  railroads  within  a  state  on 
which  grain  or  fruit  is  transported  to  a  distant  market. 

^"-Post,   Sec.   336.  "The    Daniel    Ball     v.     United 

"^  Supra,   Sec.  43.  States,  10  Wall.,  77  U.  S.  557,  19 

L.    Ed.    999. 


128  A^\I,TDITY  AND   ScOPE  OF  THE  [§    68. 

"We  answer  that  the  present  case  relates  to  transportation 
on  the  navigable  waters  of  the  United  States,  and  we  are  not 
called  upon  to  express  an  opinion  upon  the  power  of  Congress 
over  interstate  commerce  when  carried  on  by  land  transporta- 
tion. And  we  answer  further,  that  we  are  unable  to  draw  any 
clear  and  distinct  line  between  the  authority  of  Congress  to  regu- 
late an  agency  employed  in  commerce  between  the  states,  when 
that  agency  extends  through  two  or  more  states,  and  when  it  is 
confified  in  its  action  entirely  within  the  limits  of  a  single  state. 
If  the  authority  does  not  extend  to  an  agency  in  such  commerce 
when  the  agency  is  confined  within  the  limits  of  a  state,  its  en- 
tire authority  over  interstate  commerce  may  be  defeated.  Sev- 
eral agencies  combining,  each  taking  up  the  commodity  trans- 
ported at  the  boundary  line  at  one  end  of  a  state,  and  leaving 
it  at  the  boundary  line  at  the  other  end,  the  federal  jurisdiction 
would  be  entirely  ousted,  and  the  constitutional  provision  would 
be  a  dead  letter." 

In  Gulf  C.  &  S.  F.  Ry.  Co.  v.  Texas  ^^  there  were  involved 
two  independent  shipments,  and  the  fact  that  the  first  w^as  in- 
terstate did  not  make  the  second,  moving  between  points  both  of 
which  were  in  Texas,  an  interstate  shipment. 

The  Commission  held  that  an  indispensable  element  of  a 
through  shipment  was  a  contract  therefor ;  ^'^  but  while  this  state- 
ment may  be  correct  generally,  it  disregards  the  principle  that 
substance  and  not  mere  form  controls.  In  the  Social  Circle 
case  ^'^  an  intrastate  movement  that  was  part  of  an  interstate 
movement  under  a  through  bill  of  lading,  was  held  subject  to  the 
supervision  of  the  Commission. 

§  68.  Transportation  Included  in  Act,  Continued.' — As 
stated  in  the  preceding  section,  the  general  rule  that  a  contract 
for  through  shipment  determines  whether  or  not  the  shipment 
is  interstate  or  intrastate,  and  the  decision  in  Gulf,  Colorado  & 


'=  Gulf,    C.    &    S.    F.    R.    Co.    V.  16  Sup.  Ct.  700.     See  also,  United 

Texas,   204  U.    S.   403.   51   L.    Ed.  States    v.    Wood,    145    Fed.    405,. 

540,   27    Sup.    Ct.   360.  411;    United    States    v.    Colorado 

""Re    Alleged    Unlawful    Rates  &   N.   W.   Ry.   Co.,   157    Fed.   321, 

and  Practices,  7  I.  C.  C.  240,  247.  85  C.  C.  A.  48;  Chicago,  B.  &  Q. 

"  Cincinnati,  N.  O.   &  T.  P.   R.  R.  Co.  z:  United  States,  157  Fed- 
Co.  V.   Interstate   Com.  Com..   162  830,   85    C.    C.   A.   194. 
U.  S.  184,   192,  40  L.   Ed.  935,  938, 


§  68.]  Act  to  Regulate  Commerce.  129 

Sante  Fe  Ry.  Co.  z'.  Texas  must  be  limited  by  the  principle 
that  the  substance  and  not  the  mere  form  controls.  In  the  Gal- 
veston Terminal  Case  ^^  it  was  held  that  l\'here  goods  were  in- 
tended for  export,  the  fact  that  the  first  bill  of  lading  was  is- 
sued to  a  terminal  within  the  state,  the  commodity  there  to  be 
delivered  to  a  carrier  for  a  foreign  destination,  did  not  make 
the  movement  an  intrastate  one,  and  that  such  transportation 
was  subject  to  regulation  by  the  Interstate  Commerce  Commis- 
sion. In  this  case  emphasis  was  laid  upon  the  fact  that  the 
Terminal  Company  was  controlled  by  the  Railroad  Company, 
and  in  the  course  of  the  opinion  it  was  said : 

"A'erbal  declarations  can  not  alter  the  facts.  The  control  and 
operation  of  the  Southern  Pacific  Company  of  the  railroads  and 
the  Terminal  Company  have  united  them  into  a  system  of  which 
all  are  necessary  parts,  the  Terminal  Company  as  well  as  the 
railroad  companies." 

And  the  conclusion  of  the  Court  is  shown  by  this  language: 

"The  Terminal  Company  is  part  and  parcel  of  the  system  en- 
gaged in  the  transportation  of  commerce,  and  to  the  extent  that 
such  commerce  is  interstate  the  Commission  has  jurisdiction  to 
supervise  and  control  it  within  statutory  limits.  To  hold  other- 
wise would  in  ettect  permit  carriers  generally,  through  the  or- 
ganization of  separate  corporations,  to  exempt  all  of  their  ter- 
minals from  our  regulating  authority." 

This  case  was  followed  and  the  Santa  Fe  case  distinguished 
in  a  subsecjuent  case,^**  where  it  was  held  that,  although  continu- 
ity of  movement  might  be  conceded  as  necessary  to  make  the 
shipment,  the  court  could  look  behind  the  mere  billing  and  deter- 


'' Southern    Pac.    Term.    Co.    v.  Worthington,  225  U.  S.  101,  56  L.. 

Interstate   Com.   Com.,  219  U.   S.  Ed.    1004,   32   Sup.    Ct.   653.     And 

498,     55     L.     Ed.     310,     31     Sup.  see  Texas   &  P.  R.  Co.  v.   R.   R. 

Ct.  279,   citing   Coe   v.    Errol,   116  Com.      of     Louisiana,      183      Fed. 

U.   S.   517,  29   L.    Ed.   715,   6   Sup.  1005;        Re       Discrimination       in 

Ct.     475,     sustaining     the     Com-  Wharfage  at  Pensacola,  27   I.   C. 

mission   in    Eichenberg   v.    South-  C.  252.     For  cases  like  the   Santa 

ern  Pac.  Co.,  14  I.  C.  C.  250.  Fe    Case,    see    United    States    v. 

'"Texas  &  X.  O.  R.  Co.  v.  Sa-  Wood,  145  Fed.  405.  411;  Oregon 

bine    Tram    Co.,    227    U.    S.    Ill,  R.   &   Nav.   Co.   z:   Campbell,   ISO 

57    L.    Ed.    442,   33    Sup.    Ct.    229,  Fed.    253,    same    styled    case,    173 

citing    The     Galveston     Terminal  Fed.  957,  177   Fed.  318. 
Case  and  R.  R.  Com.  of  Ohio  v. 


130  \'alidity  and  Scope  of  the  [§  68. 

mine  the  real  character  of  the  transportation.  In  Railroad  Com- 
panies of  Louisiana  v.  Texas  Pac.  R.  Co.,"'*  the  principles  es- 
tahlished  by  former  decisions  were  stated:  "The  principle  enun- 
ciated in  the  cases  were  that  it  is  the  essential  of  the  charac- 
ter of  the  commerce,  not  the  accident  of  local  or  through  bills 
of  lading",  which  determines  federal  or  state  control  over  it. 
And  it  takes  character  as  interstate  or  foreign  commerce  when 
it  is  actually  started  in  the  course  of  transportation  to  another 
state  or  to  a  foreign  country."  The  delivery  of  cars  for  inter- 
state shipment  is  within  the  act.'^^  ' 

In  the  Iowa  case  *'-  the  shipments  of  coal  moved  to  Daven- 
port, Iowa,  in  interstate  commerce.  Upon  the  arrival  of  the 
coal  at  Davenport,  all  transportation  charges  thereto  were  paid : 
and,  without  unloading  the  cars,  the  consignee  tendered  written 
billing  for  reshipment  to  local  points  in  Iowa ;  the  carrier  refused 
to  accept  such  reshipment  in  foreign  cars,  claiming  that  the 
shipment  should  be  unloaded  and  reloaded  into  its  own  cars. 
The  commodity  when  shipped  from  the  original  point  of  origin 
in  a  state  other  than  Iowa,  was  destined  to  Davenport,  at  which 
place  the  consignee  could  unload  and  there  sell  or  reconsign  the 
coal  to  another  place.  It  being  found  as  a  fact  that,  "The  cer- 
tainty in  regard  to  the  shipments  of  coal  ended  at  Davenport," 
the  Supreme  Court  of  the  United  states  sustained  the  Supreme 
Court  of  Iowa  in  holding  that  this  reshipment  into  Iowa  was 
an  intrastate  movement.  The  carrier  had  contended  that  the 
method  adopted  was  a  device  to  secure  a  lower  than  the  through 
rate ;  the  local  rate  from  Davenport  added  to  the  interstate  rate 
thereto  being  less  than  the  through  rate  from  the  original  point 
of  origin  to  the  final  point  of  destination.  This  contention  of  the 
carrier  presented  a  question  of  fact,  and  on  the  question  of  fact 
the  Supreme  Court  of  the  United  States  said:   "We  are  luiable  to 

"'R.    R.    Com.    of    Louisiana    v.  988,  34  Sup.  Ct.  592:  State  v.  Chi- 

Texas    &  •  P.    R.    Co..    229    U.    S.  cago    M.    &    St.    P.    R.    Co.,    152 

336,    57    L.    Ed.    1215.    33    Sup.    Ct.  Iowa    317,    130    N.    W.    802.      See 

837.  also   Kanotex   Refining   Co.  v.  A. 

''^Chicago,   R.   I.   &  P.   Ry.   Co.  T.    &   S.    F.    R.    Co.,   34    I.    C.    C. 

V.    Hardwick    Farmers     Elevator  271;   Railroad  Com.  v.  Worthing- 

Co.,  226  U.  S.  426,  57  L.   Ed.  2S4.  ton,  225  U.  S.  101.  56  L.  Ed.  1004, 

33    Sup.    Ct.   174.  32    Sup.    Ct.   653;    and   the   quota- 

"-  Chicago   M.   &   St.   P.   R.    Co.  tion    from    the    Daniel    Ball    Sec. 

V.   Iowa,  233  U.  S.  334,  58  L.   Ed.  67    supra. 


§  68.]  Act  to  Regulate  Commerce.  131 

say  upon  this  record  that  the  state  court  has  improperly  charac- 
terized the  traffic  in  question  here."  The  state  court  having 
held  that  the  second  movement  was  an  intrastate  movement 
subject  to  regulation  by  the  state  authorities,  its  judgment  was 
affirmed  by  the  Supreme  Court.  The  criticisms  that  have  been 
directed  at  this  opinion  fail  to  give  proper  consideration  to  the 
finding  of  facts  involved.  The  Supreme  Court  adopted  the  facts 
as  found  by  the  state  court,  but  took  occasion  to  say:  "It  is 
undoubtedly  true  that  the  question  whether  commerce  is  inter- 
state or  intrastate  must  be  detennined  by  the  essential  charac- 
ter of  the  commerce,  and  not  by  mere  billing  or  forms  of  con- 
tract." Whether  assent  be  granted  or  withheld  from  the  con- 
clusions of  fact  found  by  the  state  court  and  accepted  by  the 
Supreme  Court,  the  law  as  announced  by  the  latter  court  is  en- 
tirely consistent  with  the  decisions  in  the  cases  cited  in  notes 
59-61  supra. 

In  the  Shreveport  case  the  Commerce  Court  held  that  dis- 
crimination which  was  the  result  of  a  purely  intrastate  rate  was 
not  justified  because  the  result  of  a  State  Commission-made-rate, 
and  that  as  to  interstate  commerce  such  discrimination  could  be 
prohibited  by  the  Interstate  Commerce  Commission.*^^  This  case 
was  affirmed  by  the  Supreme  Court,  the  conclusion  being  that 
Sec.  3  of  the  Act  to  Regulate  Commerce  was  intended  to,  and 
does,  make  illegal  all  unjust  discrimination,  even  though  the  dis- 
crimination be  caused  by  an  intrastate  rate  prescribed  by  or 
under  authority  of  a  state  law,  and  that  Congress  is  not  re- 
quired to  remove  the  discrimination  by  lowering  an  interstate 
rate  not  found  to  be  too  high.'^^ 

When  a  combination  rate  is  in  force  from  the  United  States 
to  a  point  in  Canada,  the  Interstate  Commerce  Commission  has 
held  that  it  has  no  jurisdiction  of  that  part  of  the  combination 
rate  "'applicable  only  in  Canadian  territory."'^''  Alaska  is  a  ter- 
ritory within  the  meaning  of  the  act.*'"'" 

''Texas   &  P.     R.   Co.  v.   Inter-  &  S.   F.   Ry.   Co.,  31   I.   C.   C.  532. 

state    Com.    Com.,    205    Fed.    380,  '''•  Fullerton    Lumber    &   Shingle 

sustaining  the   Commission  in   R.  Co.  v.   Bellingham  Bay  &  British 

R.    Com.    of   La.   v.    St.    Louis    &  Columbia  R.  Co.,  25  I.  C.  C.  376. 

S.  W.  Ry.   Co.,  23  I.   C.   C.  31.  ""Interstate      Com.      Com.      v. 

"Houston   E.  &  \V.  Ry.  Co.  v.  United  States  ex  rel.  Humbolt  S. 

U.    S.,    234    U.    S.    342,    58    L.    Ed.  &    Co.,    224   U.    S.   474,   56    L.    Ed. 

1341,    34    Sup.    Ct.    833.      See    also  849,  32  Sup.   Ct.  556. 
Corp.    Com.    of    Okla.    v.    A.    T. 


132  \\\LIDITY  AND   ScOPE  OF  THE  [§    69. 

§  69.  Same  Subject. — If  a  transportation  movement  begin- 
ning and  ending  in  a  state  passes  for  a  substantial  part  of  the 
distance  through  another  state,  the  state  in  which  such  trans- 
portation begins  and  ends  can  not  regulate  the  rate.*^'  The  de- 
cision in  which  this  holding  was  made  has  been  distinguished  in 
subsequent  cases  but  not  to  limit  the  principle  as  here  stated.*^* 
But  where  such  shipment  moves  through  another  state  when  it 
could  have  moved  intrastate  at  a  lower  rate,  reparation  will 
be  awarded.*'''-^ 

Speaking  of  Water  Carriers,  the   Supreme  Court  has  said  :"^ 

"Certain  it  is  that,  when  engaged  in  carrying  on  traffic  under 
joint  rates  with  railroads,  filed  with  the  Commission,  the  car- 
riers are  bound  to  deal  upon  like  terms  with  all  shippers  who 
seek  to  avail  themselves  of  such  joint  rates,  and  are  subject 
to  the  general  requirements  of  the  act  preventing  and  punishing 
the  giving  of  rebates,  the  making  of  unjust  discriminations, 
the  showing  of  favoritism  and  other  practices  denounced  in  the 
various  sections  of  the  act." 

And  it  was  held  that  such  carriers  were  subject  to  sections  12, 
15,  20,  and  21  of  the  Act  to  Regulate  Commerce.  Prior  to  the 
passage  of  the  Panama  Canal  Act,  water  carriers  not  joining  in 
a  through  route  or  common  arrangement  with  rail  carriers  were 
not  subject  to  the  provisions  of  the  act.'^  Since  the  passage  of 
this  act  the  Commission  has  jurisdiction  "when  property  may  be 
or  is  transported  from  point  to  point  in  the  United  States, 
through  the  Panama  Canal  or  otherwise. '"'- 

"  Hanley  v.  Kansas  C.  S.  R.  "'  Lathrop  Lumber  Co.  v.  Ala- 
Co.,  187  U.  S.  G17,  47  L.  Ed.  333,  bama  G.  S.  R.  Co.,  27  I.  C.  C. 
23     Sup.    Ct.    214,     distinguishing  250. 

Lehigh  Valley  R.  Co.  v.  Pennsyl-  '"  Interstate      Com.      Com.      v. 

vania,    145    U.    S.    192,    36    L.    Ed.  Goodrich   Transit   Co.,   224   U.    S. 

672,  12  Sup.  Ct.  806,  4  L  C.  C.  87.  194.    20S,    56    L.    Ed.    729,    32    Sup. 

"'  Cincinnati,    Portsmouth,    etc.,  Ct.  436,  reversing  the  Commerce 

Packing    Co.    v.    Bay,    200    U.    S.  Court  in  Goodrich  Transit  Co.  z\ 

179,    50    L.    Ed.    428,    26    Sup.    Ct.  Interstate    Com.    Com.,    190    Fed. 

208;    Ewing    v.    City    of    Leaven-  943. 

worth,   226   U.    S.   464,   468,   57   L.  ''  Re    Jurisdiction    over    Water 

Ed.    303,    33    Sup.    Ct.    157.      The  Carriers,    15    I.    C.    C.    205. 

Hanley    case    was    cited    as    au-  '"  Panama     Canal     Act    August 

thority    in    Simpson    v.    Shepard,  12,   1914,   Sec.   64  supra.     See   Sec. 

230  U.  S.  352,  401,  57  L.   Ed.  1511,  379,   post. 
33   fup.   Ct.   729. 


§  70.]  Act  to  Regulate  Commerce.  133 

§  70.  Powers  and  Procedure  of  the  Commission. — In  the 
first  seven  sections  of  the  act  are  stated  the  rights  of  the  shipper 
and  the  duties  of  the  carrier.  Sections  six,  eight,  nine,  thirteen, 
fourteen,  fifteen,  sixteen,  sixteen-a  and  .twenty  relate  to  the 
remedies  of  shippers,  and  the  administration  of  the  act  by  the 
commission.  Section  ten  relates  to  public  penalties,  section 
eleven  to  the  appointment  of  the  commissioners,  sections  twelve, 
eighteen,  twenty-one,  twenty-two,  and  twenty-four  apply  to  the 
commission's  purely  administrative  duties.  Section  seventeen 
relates  to  forms  of  procedure.  Section  twenty-two  expressly 
retains  existing  common  law  and  statutory  remedies,  and  sec- 
tion twenty-three  provides  for  cumulative  remedies  in  the  courts 
of  the  United  States.  Section  sixteen  also  provides  a  period  of 
limitation  in  which  to  bring  complaints  for  damages.  Section 
twenty  makes  the  receiving  carrier  liable  for  loss,  damage,  or 
injury  to  property  which  it  has  received  for  transportation,, 
whether  caused  by  it  or  a  connecting  carrier  to  whom  it  may 
have  delivered  the  shipment.  Section  19a,  added  by  the  Amend- 
ment of  March  1,  1913,  invests  the  Commission  with  power  after 
investigation  to  make  a  valuation  of  the  property  of  common  car- 
riers subject  to  the  act,  and  prescribes  the  effect  of  such  valua- 
tions when  made. 

The  duties  prescribed  in  the  act  to  regulate  commerce  are  not 
in  substance  broader  than  such  duties  at  common  law.  It  is  in 
the  remedies  to  enforce  such  duties  that  the  act  possesses  its 
real  importance.  When  a  common  carrier  has  violated  the  act 
it  is  "liable  to  the  person  or  persons  injured  thereby  for  the 
full  amount  of  damages  sustained  in  consequence  of  any  such 
violation,"  and.  in  addition  to  this  common  law  damage,  to  "a 
reasonable  counsel  or  attorney's  fee."  Suit  for  such  damages 
the  act  says  may  be  brought  by  "complaint  to  the  commission," 
or  by  suit  "in  any  district  or  circuit  court  of  the  United  States 
of  competent  jurisdiction." 

The  Supreme  Court  of  the  United  States,  speaking  of  the  pro- 
vision of  section  nine,  just  quoted,  says'"  "We  think  that  it  in- 
evitably follows  from  the  context  of  the  act  that  the  independ- 
ent right  of  an  individual  originally  to  maintain  actions  in  courts 

"Texas   &  P.   Ry.   Co.  v.  Abi-      350,  9  Ann.   Cas.   1075.     See  also 
lene    Cotton    Oil    Co.,    204    U.    S.       Sec.  383,  post. 
42(;,    51    L.    Ed.    553,    27    Sup.    Ct. 


134  A^A.LIDITY  AND   ScOPE  OF  THE  [§    71. 

to  obtain  pecuniary  redress  for  violations  of  the  act  conferred  by 
the  ninth  section  must  be  confined  to  redress  of  such  wrongs  as 
can,  consistently  with  the  context  of  the  act,  be  redressed  by 
courts  without  previous  action  by  the  commission."  This  case 
was  a  suit  brought  in  a  state  court  to  recover  damages  for  an 
alleged  illegal  rate  charged,  the  rate  being  that  prescribed  in  a 
legally  filed  tarift"  which  had  never  been  declared  by  the  com- 
mission to  be  in  violation  of  the  law.  While  this  suit  was 
brought  in  a  state  court,  and  while  express  authority  to  sue  in 
the  United  States  courts  is  granted  by  section  nine,  the  reason- 
ing of  the  court  would  demand  the  same  decision  had  the  suit 
been  brought  in  a  "Court  of  the  United  States  of  competent  ju- 
risdiction." 

§  71.  Same  Subject. — Section  15  as  amended  by  the  act  of 
June  18,  1910,  '^■*  gives  to  the  Commission  power  to  suspend  ad- 
vances in  rates. 

Prior  to  the  Hepburn  Act  the  commission  might  determine 
whether  a  particular  rate  was  just  or  unjust,  but  could  not  pre- 
scribe rates  to  control  in  the  future.  The  amendment  of  June 
29,  1906,  gave  power  to  the  commission,  upon  the  complaint  of 
natural  or  corporate  persons,  including  mercantile,  agricultural, 
or  manufacturing  societies,  public  corporations  and  state  rail- 
road commissions,  or  on  its  own  motion,  to  make  investigations 
with  reference  to  rates  or  practices  of  interstate  carriers,  to 
make  reports  stating  its  conclusions,  together  with  its  decision, 
order  or  requirement,  and  when  damages  are.  awarded,  such  re- 
port should  include  the  findings  of  fact  on  which  the  award  was 
made ;  power  and  authority  was  granted  to  the  commission  and 
it  was  made  its  duty  whenever,  after  full  hearing  upon  a  com- 
plaint made  as  provided  in  section  thirteen  of  this  act,  or  under 
an  order  for  investigation  and  hearing  on  its  own  motion,  it 
shall  be  of  the  opinion  that  any  of  the  individual  or  joint  rates, 
or  charges  whatsoever,  demanded,  charged,  or  collected  by  any 
carrier  or  carriers,  subject  to  the  provisions  of  this  act,  for  the 
transportation  of  persons  or  property  as  defined  in  the  first  sec- 
tion of  this  act,  or  for  the  transmission  of  messages  by  tele- 
graph or  telephone,  or  that  any  individual  or  joint  regulation  or 
practice  in  respect  to  such  transportation  is  just,  fair,  and  rea- 
sonable   to    be    thereafter    followed;    to    make    an    order    that 

'■^Post,    Sec.    398. 


§  72.]  Act  to  Regulate  Commerce.  135 

the  carrier  shall  cease  and  desist  from  such  violations,  to  the  ex- 
tent to  which  the  commission  might  have  found  the  same  to  exist, 
and  further  to  require  that  the  carrier  should  not  thereafter  pub- 
lish, demand,  or  collect  any  rate  or  charge  for  such  transportation 
in  excess  of  the  maximum  rate  or  charge  so  prescribed,  and  should 
conform  to  the  regulation  or  practice  so  prescribed.  The  power 
was  also  given  the  commission  to  require  the  establishment  of 
through  routes  and  to  fix  joint  rates  and  prescribe  an  allowance 
which  must  be  reasonable  for  a  service  or  instrumentality  fur- 
nished by  the  owner  of  property  transported. 

All  awards  of  the  commission,  except  orders  for  the  payment 
of  money,  take  effect  within  a  reasonable  time,  not  less  than 
thirty  days,  and  continue  in  force  as  prescribed  not  exceeding 
two  years  unless  suspended,  set  aside,  or  modified  by  the  com- 
mission or  a  court  of  competent  jurisdiction ;  and  it  is  the  duty 
of  every  common  carrier,  its  agents  and  employees,  to  observe 
and  comply  with  such  orders  under  penalty.  The  Commission 
is  by  section  nine  of  the  Act  of  1910,  amending  section  six  of  the 
old  law,  given  power  to  reject  schedules  under  certain  circum- 
stances, and  schedules  so  rejected  are  void,  and  the  failure  to 
comply  with  regulations  adopted  and  promulgated  by  the  Com- 
mission, is  a  criminal  oft"ense. 

§  72.  Switch  Connections. — Under  section  one  of  the  Act 
of  March  4,  1887,  as  amended  by  the  Act  of  June  29,  1906,  the 
Supreme  Court  held  that  the  Interstate  Commerce  Commission 
had  power  to  compel  switch  connections  with  lateral  branch  roads 
only  at  the  instance  of  shippers  and  that  it  had  no  power  to  com- 
pel switch  connections  on  the  application  of  a  branch  railroad. 
This  decision  of  the  Supreme  Court  would  not  be  applicable  to 
the  Act  of  1910,  as  the  "owner"  of  such  lateral  branch  road  has 
now  the  same  rights  as  a  shipper. 

§  73.  Damages  and  Penalties  for  Misquoting-  a  Rate. — 
Prior  to  the  xAct  of  1910,  a  shipper,  who  had  been  damaged  by 
the  error  of  a  common  carrier  in  misquoting  a  rate,  had  no  rem- 
edy. The  Act  of  1910  amends  section  six  of  the  prior  Act  by 
providing  a  penalty  against  the  carrier  for  giving  a  shipper  the 
wrong  rate.  As  the  statute  in  section  eight  gives  a  shipper  the 
right  to  recover  damages  for  any  violation  of  the  Act,  it  is  be- 
lieved that  upon  requesting  a  quotation  of  a  rate  as  the  statute 
requires,   the   shipper   suft'ering   damage    in    consequence    of   an 


136  Validity  and  Scope  of  the  [§  74. 

erroneously  stated  rate,  may  recover  such  damages  by  suit  against 
the  carrier  in  any  court  of  competent  jurisdiction. 

§  74.  Penalties. — Section  ten  of  the  old  law  is  amended  by 
the  Act  of  1910;  paragraphs  one,  two  and  four  of  the  old  section 
are  unchanged.  Paragraph  three  of  the  original  section  ten  is 
amended  and  enlarged,  in  line  one,  by  adding  after  "person"  the 
words  ''corporation  or  company;"  after  the  word  "package"  in 
the  old  law,  the  new  law  adds  "or  the  substance  of  the  property ;" 
"officer"  is  added  to  "agent"  in  the  new  law;  and  an  "attempt" 
to  obtain  transportation  at  less  than  the  legal  rate  is  now  illegal. 
Imprisonment  is  specifically  made  inapplicable  to  artificial  per- 
sons, and  this  new  language  making  illegal  other  acts  is  added: 
"or  w^ho  shall  knowingly  and  willfully,  directly  or  indirectly,  him- 
self or  by  employee,  agent,  officer  or  otherwise,  by  false  state- 
ment or  representation  as  to  cost,  value,  nature,  or  extent  of 
injury,  or  by  the  use  of  any  false  bill  of  lading,  receipt,  voucher, 
roll,  account,  claim,  certificate,  affidavit,  or  deposition,  knowing 
the  same  to  be  false,  fictitious,  or  fraudulent,  or  to  contain 
any  false,  fictitious,  or  fraudulent  statement  or  entry,  obtain 
or  attempt  to  obtain  any  allowance,  refund,  or  payment  for 
damage  or  otherwise  in  connection  with  or  growing  out  of 
the  transportation  of  or  agreement  to  transport  such  property, 
whether  with  or  without  the  consent  or  connivance  of  the  carrier, 
whereby  the  compensation  of  such  carrier  for  such  transporta- 
tion, either  before  or  after  payment,  shall  in  fact  be  ,made  less 
than  the  regular  rates  than  established  and  in  force  on  the  line 
of  transportation." 

§  7^.  Investigations  by  the  Interstate  Commerce  Com- 
mission.— Section  thirteen  of  the  original  Act  is  enlarged  by 
the  Act  of  1910,  the  principal  change  being  to  extend  the  power 
of  the  Interstate  Comme.rce  Commission  to  make  investigations 
on  its  own  initiative.  The  language  of  this  amendment  would 
seem  to  be  broad  enough  to  meet  the  decision  of  the  Supreme 
Court  in  the  Harriman  case,"°  because  after -giving  power  to  in- 
vestigate "any  matter  or  thing  concerning  which  a  complaint  is 
authorized,"  this  is  added :  "or  concerning  which  any  question 
may  arise  under  any  of  the  provisions  of  this  Act." 


'^  Harriman   v.    Interstate    Com.       253,    29    Sup.    Ct.    115. 
Com.,    211    U.    S.    407,    53    L.    Ed. 


§  76.]  Act  to  Regulate  Commerce.  137 

§  76.  Additional  Power  Given  the  Interstate  Commerce 
Commission. — Section  fifteen,  added  by  the  Act  of  June  29, 
1906,  is  amended  by  the  Act  of  1910  to  enlarge  and  more  defi- 
nitely state  the  powers  of  the  Interstate  Commerce  Commission. 
The  amendment  gives  the  Commission  "on  its  own  initiative," 
"in  extension  of  any  pending  complaint  or  without  any  com- 
plaint," power  over  "individual  or  joint  rates,"  and  over  "in- 
dividual or  joint  classifications."  While  the  words  "any  regula- 
tions or  practices  whatsoever"  affecting  rates,  contained  in  the 
Act  of  1906,  may  have  been  sufficiently  broad  to  include  regula- 
tions afifecting  classifications  and  joint  rates,  if  any  doubt  existed 
as  to  such  Act  being  so  inclusive,  such  doubt  is  removed  by  the 
Act  of  1910. 

§  77 .  Commission  May  Suspend  an  Advance  in  Rates. — 
Heretofore  the  carriers  could  make  any  increase  in  rates  or  any 
change  in  regulations  however  unjust,  and  the  Interstate  Com- 
merce Commission  could  not  stay  the  advance  or  prohibit  the 
regulation  until  after  a  long  delay,  during  which  an  investigation 
was  had.  Some  of  the  Circuit  Courts  and  Circuit  Courts  of  xA.p- 
peals  held  that  an  illegal  advance  could  be  enjoined,  other  courts 
held  the  contrary  and  the  Supreme  Court  has  never  determined 
the  question.  The  amendment  of  1910  provides  that  the  opera- 
tion of  such  advance  or  regulation  may  be  suspended  or  deferred 
by  the  Interstate  Commerce  Commission  until  after  an  investiga- 
tion by  the  Commission.  These  provisions  of  the  Act  are  en- 
tirely new.  A  Senate  Committee  had  in  1906  reported  against 
giving  such  power  to  the  Commission,  and  it  must  be  admitted 
that  this  power  in  the  Commission  makes  a  fundamental  depart- 
ure in  the  regulation  of  common  carriers.  Heretofore  the  right 
of  the  carrier  to  initiate  rates  was  not  subject  to  the  control  of 
the  Commission ;  now,  while  the  carrier  can  yet  initiate  a  rate 
or  regulation  such  right  is  subject  to  the  control  of  the  Com- 
mission. The  new  law  will  prevent  the  delay  and  injury 
which  shippers  suffered,  who  had  heretofore  to  file  their 
complaint  against  an  illegal  advance  and  rely  on  the  tire- 
some, expensive  and  inadequate  remedy  by  reparation.  Section 
fifteen,  as  amended,  gives  the  shipper  certain  rights  with  refer- 
ence to  through  routes  and  prohibits  carriers  and  their  agents 
from  giving  information  with  reference  to  shipments.  Under 
the  new  Act,  the  burden  of  proof  to  show  the  justness  and  rea- 


138  \'alidity  and  Scope  of  the  [§  78. 

sonableness  of  an  advance  is  on  the  carrier.  This  burden  was 
on  the  carrier  prior  to  the  Act  of  1910.  when  a  rate  long  in  ex- 
istence was  advanced,  although  there  have  been  some  opinions 
expressed  to  the  contrary.  The  Interstate  Commerce  Commission 
in  the  case  of  Memphis  Cotton  Oil  Co.  v.  Illinois  Cent.  R.  Co., 
17  I.  C.  C.  313,  while  not  repudiating  the  doctrine  above,  states 
it  less  clearly  than  some  of  the  prior  decisions  of  the  Commission. 
It  is  a  fundamental  law  that  acts  of  an  individual  are  presump- 
tively not  contrary  to  his  interests,  and  as  said  by  \\'allace,  Judge, 
in  Menacho  z\  AA'ard,  27  Fed.  529,  532 :  "The  estimate  placed  by 
a  party  upon  the  value  of  his  own  services  or  property  is  always 
sufficient,  against  him,  to  establish  the  real  value ;  but  it  has 
augmented  probative  force,  and  is  almost  conclusive  against  him, 
when  he  has  adopted  it  in  a  long-continued  and  extensive  course 
of  business  dealings." 

§  78.  Reports  of  Carriers. — Paragraph  two  of  section  twenty 
of  the  Act  of  1906  is  stricken  by  the  Act  of  1910,  and  in  lieu 
thereof  a  new  paragraph  is  enacted,  giving  the  Commission 
power  to  require  annual  reports  for  the  year  ending  either  June 
thirtieth  or  December  thirty-first  of  each  year,  instead  of  June 
thirtieth  only  as  was  provided  by  the  old  law,  and  also  giving 
power  to  the  Commission  in  addition  to  the  annual  and  monthly 
reports,  to  require  of  carriers  "periodical  or  special"  reports."''^ 

§  79.  Court  Procedure  with  Reference  to  the  Orders 
of  the  Commission. — The  Commission  is  given  power  to  ap- 
ply to  the  courts  to  enforce  its  orders.  A\'rits  of  mandamus 
may  issue  from  the  circuit  and  district  courts  of  the  United  States 
to  compel  the  movement  and  transportation  of  freight  without 
undue  discrimination,  and  to  compel  the  furnishing  of  cars  and 
other  facilities  of  transportation.  Suits  to  enforce  orders  for 
reparation,  after  an  order  therefor  has  been  granted  by  the  Com- 
mission, may  be  brought  in  the  Federal  or  the  State  courts.  Un- 
der certain  circumstances,  courts  may  suspend  or  set  aside  the 
orders  of  the  Commission.  What  these  circumstances  are  will 
be  discussed  hereinafter  in  Chapter  VII. 

''Post,  Sec.  432. 


CHAPTER  III. 

All  Charges  for  Services  Rendered  by  Common  Carriers  in 
THE  Transportation  oe  Persons  or  Property  or  in  Con- 
nection Therewith  Must  Be  Just  and  Reasonable. 

§  80.  All   Charges   Must   Be   Reasonable. 

81.  Classification. 

82.  Cost    of    Carrier's    Equipment. 

83.  Cost  of  Carrier's  Equipment.     What  Is  a  Reasonable  Return. 

84.  Same  Subject.     Difficulties   in   Determining  the  Question. 

85.  Cost    of   Service 

86.  Cost.     When   Carrier's    Duty   to    Furnish    Service. 

87.  Cost   of  Service,   Continued. 

88.  Value   of   Service. 

89.  Same  Subject.     Use  to  Which  Commodity  Put. 

90.  Value  of  the  Commodity,   Its  General  Utility  and  Danger  of 

Loss. 

91.  Value  of  the   Commodity.     Difference  Between  the   Raw  and 

the   Manufactured   Product. 

92.  Competition     or     Its     Absence     Considered     in     Determining 

Reasonable    Rates. 

93.  Same    Subject. 

94.  Same    Subject.      Rule    Since    1910. 

95.  Same   Subject.      Conclusion. 

96.  Rates  Affected  by  Amount  of  Tonnage. 

97.  Same   Subject.     Limitations   on   Rule. 

98.  Density   of  Traffic. 

99.  Distance  and  Rate  per  Ton  Mile. 

100.  General    Business    Conditions. 

101.  Estoppel. 

102.  Rates  Long  in  Existence  Are  Presumed  to  Be  Reasonable. 

103.  Same    Subject. 

104.  Voluntary  Reduction  of  Rates. 

105.  Same   Subject.     Act  June  18,  1910. 

106.  Grouping  Territory  and   Giving  Each   Group   Same   Rate   Le- 

gal under  Some  Circumstances. 

107.  Grouping  Producing  Points  and  Making  Zones  Taking  Same 

Rates. 

108.  Basing  Point  System. 

109.  Same   Subject.     Breaking  Rates. 

110.  Comparison   Between   Different   Lines   as   a   Means   of   Deter- 

mining Correct  Rate. 

111.  Car  Load  and  Less  than   Car  Load  Movements  as  Affecting 

the   Rate. 

139 


140  Charges  by  Common  Carriers  [§  80. 

112.  Establishing    Car    Load    Rates. 

113.  Same  Subject.     Rule  in  Duncan   Case   Criticised. 

114.  Same    Subject.      Proper    Differential    Between    Rates    on    Car 

Load  and   Less   than   Car   Load  Freight. 

115.  Car   Load   Minima. 

116.  Train  Load  Rates. 

117.  Relation  of  Through  Rates  to  the  Sum  of  Local  Rates. 

118.  Proportional    Rates. 

119.  Through     Rate     Must     Not     Exceed   Aggregate   of   Intermedi- 

ate Rates. 

120.  Through    Routes    and   Joint    Rates. 

121.  Same   Subject.     Amendments   of   1910  and  1912. 

122.  Rates   on   Commodities   Requiring   Refrigeration. 

123.  Rates    on    Returned    Shipments. 

124.  The  Public  Interest  Must  Be  Considered  in  Making  Rates. 

125.  General   Principles   Applicable    to   the    Question.     What    Is    a 

Reasonable   Rate? 

126.  Same    Subject.      Some    Statements    of   the    Commission    as    to 

Such  General  Principles. 

127.  Same    Subject.      Illustrative    Cases. 

128.  Same    Subject.      Discussion    of    Principles    in    Chicago    Live 

Stock   Exchange    Case. 

129.  Same  Subject.     Rate   Considered  in  and  of  Itself. 

130.  Same   Subject.     Commission  Not  Bound  by  Technical  Rules. 

131.  Same   Subject.      Summary. 

§  80.  All  Charges  Must  Be  Reasonable. — At  common  law 
and  under  the  Interstate  Commerce  Act  all  charges  made  by- 
common  carriers  for  any  service  rendered,  or  to  be  rendered, 
in  the  transportation  of  persons  or  property,  or  in  connection 
therewith,  are  required  to  be  just  and  reasonable,  and  every  un- 
just and  unreasonable  charge  for  such  service,  or  any  part 
thereof,  is  prohibited  and  declared  unlawful.^  This  principle  of 
law  necessarily  arises  from  the  franchises  and  practical  monop- 
oly incident  to  the  business  of  common  carriage.  The  principle 
is  not  new,  but  as  has  been  held  by  the  courts  for  over  two  hun- 
dred years  when  private  property  is  "affected  with  a  public  in- 
terest, it  ceases  to  be  jttris  privati  only."  Mr.  Chief  Justice 
Waite,  speaking  of  governmental  regulation  of  public  carriers, 
said :  ^ 


^  Post,  Sec.  339.     Interstate  Com.  graph,    telephone    and    cable    are 

Com.   V.    Cincinnati,    N.   O.    &   T.  also  subject  to  the  rule  of  reason- 

Ry.  Co.,  167  U.  S.  479,  42  L.  Ed.  ableness. 

243,    17    Sup.    Sup.    Ct.    S96.      The  =  Munn    v.    Illinois.   94   U.    S.    4 

transmission   of    messages   by   tele-  Otto   113,   24   L.   Ed.   77,   84.     Mr. 


§  80.]  :\IusT  Be  Reasonable.  141 

"This  brings  us  to  inquire  as  to  the  principles  upon  which 
this  power  of  regulation  rests,  in  order  that  we  may  determine 
what  is  within  and  what  without  its  operative  effect.  Looking, 
then,  to  the  common  law,  from  whence  came  the  right  which 
the  constitution  protects,  we  find  that  when  private  property  is 
affected  with  a  pubHc  interest,  it  ceases  to  be  juris  privati 
only.  This  was  said  by  Lord  Chief  Justice  Hale  more  than 
two  hundred  years  ago,  in  his  treatise  De  Portibus  Maris,  1 
Harg.  L.  Tr.,  7^^,  and  has  been  accepted  without  objection  as 
an  essential  element  in  the  law  of  property  ever  since.  Prop- 
erty does  become  clothed  with  a  public  interest  when  used  in  a 
manner  to  make  it  of  public  consecjuence,  and  affect  the  com- 
munity at  large.  When,  therefore,  one  devotes  his  property  to 
a  use  in  which  the  public  has  an  interest,  he,  in  effect,  grants 
to  the  public  an  interest  in  that  use,  and  must  submit  to  be 
controlled  by  the  public  for  the  common  good,  to  the  extent  of 
the  interest  he  has  thus  created.  He  may  withdraw  his  grant 
by  discontinuing  the  use ;  but,  so  long  as  he  maintains  the  use, 
he  must  submit  to  the  control." 

What  is  a  "just  and  reasonable"  charge  is  not  always  easily 
determinable,  but  that  is  the  desideratum  sought  by  the  law. 
It  will  be  noted  that  the  charges  "in  connection"  with  trans- 
portation are  included  within  the  requirement  of  reasonableness. 
The  same  reason  applies  to  charges  for  demurrage,^  refrigera- 
tion,^ delivery, 5  terminal  charges,"  as  well  as  other  charges  made 
for  any  service  connected  with  transportation.  The  Supreme 
Court  however  has  held,  reversing  the  commission  and  the 
lower  courts,  that  carriers  are  entitled,  for  a  service  and  expense 
in  stopping  goods  in  transit,  to  compensation  in  addition  to  the 


Justice     Hill     of     the     Supreme  tion    and    Refrigeration    of   Fruit, 

Court     of     Georgia     traced     the  11    I.    C  C.   129,   Knudson-Fergu- 

principle    of    regulation    back    to  son   Fruit   Co.  v.   Mich.    Cent.   R. 

Hammurabi;      see      Stephens     v.  Co.,  148  Fed.  968,  79  C.  C.  A.  48.3. 

Central   of   Ga.   Ry.    Co.,   138    Ga.  °  St.  Louis  Hay  &  Grain  Co.  v. 

625,   75    S.    E.    1041.   42   L.    R.   A.  Chicago,  B.  &  Q.  R.  Co..  11  I.  C. 

(N.    S.)     541.      1913E.    Ann.    Cas.  C.    82,   87. 

609.  "  Int.  Com.  Com.  v.  Chicago,  B. 

'Penn    Millers'   Asso.   v.    Phila-  &   Q.   R.   Co.,   186  U.   S.   320,   342, 

delphia   &   R.   R.    Co.,   8    I.    C.    C  46   L.   Ed.   1182,   22   Sup.    Ct.   824; 

531,  558.  Cattle  Raisers'  Asso.  v.   Chicago, 

'Re    Charges    for    Transporta-  B.  &  Q.  R.  Co.,  12  I.  C.  C.  507. 


142  Charges  by  Common  Carriers  [§  81. 

actual  expense  incurred."  \\'hether  or  not  a  particular  rate  on 
a  single  commodity  is  in  and  of  itself  just  and  reasonable  can 
not  be  demonstrated.'^  Certain  principles  and  presumptions 
have  been  made  use  of  by  the  courts  and  commission  in  deter- 
mining cases  that  came  before  them,  but  it  can  not  be  claimed 
that  rate  making  is  a  science.  \"ery  early  in  its  history,  the  com- 
mission expressed  the  difficulty  of  determining  what  constituted 
a  just  rate  as  follows: 

"The  question  of  the  reasonableness  of  rates  is  always  a  per- 
plexing one.  A  great  variety  of  considerations  are  necessarily 
involved  in  each  instance.  Theory  and  conjecture  merely  are 
not  enough.  A  comparison  of  one  isolated  rate  with  another  is 
not  sufficient.  The  whole  field  must  be  considered  in  order  to 
approximate  justice,  and  at  best  the  result  can  not  be  regarded 
as  other  than  an  approximation."  ^ 

In  the  1910  Western  Rate  Advance  Case  i"  ]\Ir.  Commissioner 
Lane  discussed  the  principles  from  which  could  be  determined 
what  is  a  reasonable  rate  and  in  concluding  the  opinion  of  the 
Commission  in  that  case  said :  "We  are  dealing  here  with  a 
difficult  problem,  involving  multitudinous  facts  and  an  infinite 
variety  of  modifying  conditions,  which  make  the  establishment 
of  principles  and  the  framing  of  policies  a  matter  of  slow  evo- 
lution." 

Some  of  the  principles  announced  by  the  courts  and  the  com- 
mission will  be  stated  in  the  next  succeeding  sections. 

§  81.  Classification. — Classification  of  commodities  for  rate 
making  is  adopted  in  prescribing  rates.  Most  traffic, 
especially  the  more  valuable  articles,  moves  under  classi- 
fied rates ;  the  heavier  articles  are  given  what  is  called  com- 
modity rates.  There  are  in  the  United  States  several  different 
classifications.  Confusion  and  sometimes  unjust  discrimina- 
tion result  from  these  different  classifications  when  the  traffic 
moves  through  territory  where  different  classification  rules  and 
descriptions  apply.     Efforts  have  been  made  by  representatives 

'Southern  Ry.  Co.  z:  St.  Louis  » Howell    r.    Xew    York.    L.    E. 

Hay   &   Grain  Co.,   214  U.   S.   297,  &    W.    R.    Co.,    2    I.    C.    C.    272,    2 

53    L.    Ed.    1004,   29    Sup.    Ct.    67S.  I.    C.   R.   162. 

*  National    Hay    Asso.    v.    Lake  '"Advance     in    Rates,    Western 

Shore  &  M.  S.  R.  Co.,  9  L  C.   C.  Case,   20   L   C.   C.  307,   379. 
264,    303,    304,    305. 


§  81.]  Must  Be  Reasonable.  143 

of  the  carriers  and  commissions,  national  and  state,  to  remedy 
this  condition  by  the  adoption  of  a  uniform  system  of  classifi- 
cation. Little  progress  has  been  made  so  far  towards  the  ac- 
complishment of  this  object.  In  some  sections  there  are  com- 
modities which  do  not  exist  in  others.  Long  existing  systems  in 
reliance  upon  which  business  has  been  established  and  prospered, 
are  facts  which  make  difficult  a  solution  of  the  problem.  But 
it  is  not,  as  said  by  Mr.  Commissioner  Lane,  "fanciful  to  say" 
that  a  solution  may  be  arrived  at.  The  learned  Commissioner 
in  the  same  connection  stated  some  principles  which  must  be 
considered.  He  said:  "Supplement  cost  with  scientific  classifi- 
cation of  freight  *  *  *  and  we  have  'something  certainly 
more  nearly  akin  to  reason  than  the  hazard  of  a  traffic  manager, 
no  matter  how  benevolently  inclined."  ^^ 

It  is  the  duty  of  carriers  subject  to  the  act  to  regulate  com- 
merce "to  establish,  observe  and  enforce  reasonable  classifica- 
tion of  property  for  transportation,"  ^~  and  the  commission  may 
"enter  upon  a  hearing  concerning  the  propriety  of  such  *  *  * 
classification."  "May  determine  and  prescribe  what  will  be 
the  just  and  reasonable.  *  *  *  individual  or  joint  classifi- 
cation." 1^  Classification  like  the  other  details  in  rate  making  is 
not  an  exact  science.^"*  "In  framing  classifications  and  rates, 
no  one  consideration  is  controlling.  Bulk,  value,  liability  to  waste 
or  injury  in  transit,  weight,  form  in  which  tendered,  etc.,  must 
be  taken  into  consideration."  ^^  All  classifications  must  be  made 
with  due  regard  to  these  and  kindred  considerations.  Market 
conditions  and  the  promotion  of  competition  are  also  facts 
which  are  considered.  Classification  must  not,  of  course, 
be  made  to  benefit  one  or  a  few  shippers  and  must  be 
without    discrimination.^*^      The    Interstate    Commerce    Commis- 


"  Advance    in     Rates,    Western  R.  Co..  19  I.  C.  C.  507,  509,  Yaw- 
Case,   20   I.    C.   C.   307,   362.  man  &  Erbe  Mnfg.  Co.  v.  Atchi- 

''Sec.  341,  post.  son,  T.   &  S.   F.   R.   Co.,   15   I.   C. 

"^  vSec.    395,   post.      Re   Advances  C.    260,    262. 
on   Coal  to'  Lake  Ports,  22   I.   C.  '"  McClung    &    Co.    z:   Southern 

C.    604,    623,    624.  Ry.    Co.,    22    I.    C.    C.    582,    584; 

^*  Forest    City    Freight    Bureau  Sutherland   Bros.   v.   St.   Louis   & 

V.  Ann  Arbor  R.  Co.,  18  I.  C.  C.  S.  F.  R.  Co.,  23  I.  C.  C.  259,  262. 

205,    206.  The     difficulties     encountered     in 

"  Ford  Co.  V.  Michigan  Central  making     rates    between     different 


144  Charges  bv  Common  Carriers  [§  81. 

sion  in  the  \\'estern  Classification  Case  ^'  dealt  at  length  with 
the  general  subject.  The  opinion  of  the  Commission,  writ- 
ten by  Mr.  Commissioner  Meyer,  begins  with  the  statement 
that  classification  is  a  public  function,  and  that  committees  en- 
gaged in  making  or  changing  classifications  should  conduct  their 
business  as  public,  giving  full  information  to  shippers  and  Com- 
missioners, state  and  national,  that  there  may  be  opportunity  for 
public  hearings.  Further  principles  were  stated:  "For  years 
past  the  Western  Classification  Committee  has  compiled  to  a 
certain  extent  what  are  designated  classification  units.  These 
units  as  compiled  are  a  combination  or  sum  of  unlike  parts,  but 
may  be  expressed  with  equal  propriety  as  a  product  composed 
of  unlike  factors.  They  are  intended  to  express  the  relation 
to  one  another  of  weight,  space,  and  value.  \Miile  a  unit  test 
of  this  character  may  not  finally  determine  the  classification  of 
an  article,  it  constitutes  a  basis  for  comparison  with  other  arti- 
cles. When  all  the  modifying  conditions  and  facts  are  known, 
a  fair  classification  relation  may  be  established  among  articles 
through  the  aid  of  this  classification  unit.  A  compilation  of  clas- 
sification units  just  as  far  as  practicable  for  every  item  in  the 
classification  would  doubtless  be  of  substantial  value  in  the 
present  formative  work.  The  classification  is  in  an  inchoate 
state.  Perhaps  every  classification  must  remain  so.  Constant 
change  appears  to  be  inherent  in  industrial  life."  In  discussing 
the  rules  which  should  apply  in  making  a  uniform  classification, 
it  was  said:  "The  uniform  classification  must  be  worked  out 
without  an  attempt  to  afifect  revenues.  Classification  and  rates 
and  revenues  should  be  kept  entirely  separate.  There  will  doubt- 
less be  many  coincidences  in  which  the  present  rate  applied  to 
the  new  classification  will  bring  about  the  exact  transportation 
charge  which  results  from  the  old  rate  applied  to  the  old  classi- 
fication. In  other  cases  the  rate  must  be  advanced  or  reduced, 
depending  upon  the  change  in  the  classification  of  the  article  in 
order  to  protect  existing  revenues.  This  is  entirely  without 
reference  to  the  sufficiency  or  insufficiency  of  present  revenues, 
which  is  a  distinct  and  very  different  question.     It  would  only 

classification    territories   are     dis-      Memphis   t'.    Chicago    R.    I.    &   P. 
cussed     in     Interior     Iowa     Cites       R.   Co.,  37   I.   C.   C. 
Case,   28   I.    C.   C.   64.   72,    and   in  "Western    Classification    Case. 

25   I.    C.   C.   442. 


§  82.]  :\IusT  Be  Reasonable.  145 

complicate  and  confuse  matters  to  attempt,  through  the  instru- 
mentaHty  of  the  classification,  to  bring  about  a  revision  in  rates 
and  charges.  \\'hether  a  rate  is  too  high  or  too  low  should  be 
made  a  separate  issue  distinct  from  classification.  Neverthe- 
less, as  far  as  possible,  the  establishment  of  ratings  and  the 
publication  of  rates  should  follow  changes  in  the  classification 
very  closely.  A  classification  is  a  universal  tariff  from  which 
the  schedules  of  individual  carriers  should  not  depart,  except 
in  cases  demanded  by  special  conditions.  Commodity  tarififs  in 
restricted  numbers  will  probably  always  remain  a  necessity." 

In  the  1915  Western  Rate  Advance  Case,is  F.  H.  Millard,  a 
witness  for  the  Interstate  Commerce  Commission,  presented  the 
result  of  studies  seeking  to  measure  the  extent  to  which  the 
value  of  the  commodity  should  constitute  a  norm  in  rate-making 
and  rate- judging.  These  studies  are  shown  in  the  appendix  to 
the  report  of  the  Commission  in  that  case. 

§  82.  Cost  of  Carrier's  Equipment. — Bonded  indebtedness, 
operating  expenses  and  dividends  on  the  investment  of  the  car- 
rier all  enter  into  the  "cost  of  service"  and  should  be  consid- 
ered, but  the  indebtedness  and  the  stock  upon  which  dividends 
are  sought  must  represent  actual  obligations  contracted  in  good 
faith  and  the  expenses  must  be  actual  and  reasonable. ^^  Mr. 
Commissioner  Prouty,-''  discussing  this  question,  aptly  says : 
"To  make  the  capital  account  of  our  railroads  the  measure  of 
their  legitimate  earnings  would  place,  as  a  rule,  the  corporation 
which  has  been  honestly  managed  from  the  outset  under  enor- 
mous disadvantages."  What  the  company  is  entitled  to  ask  is 
a  fair  return  upon  the  value  of  that  which  it  employs  for  the 
public  convenience. 2^     In  considering  the  value  of  the  property 

"Western    Rate   Advance    Case  Freight    Rate    Case).    1G9    U.    S. 

IQl.'i.    35    I.    C.    C.    497.  446,    42    L.    Ed.    819.    18    Sup.    Ct. 

"Dow  V.  Beidelman,   12.5  U.  S.  418;      Covington      &      Lexington 

680,  31  L.  Ed.  841.  8  Sup.  Ct.  1028.  Turnpike  R.  Co.  v.  Sandford,  164 

Re    Alleged    Excessive    Rates    on  U.  S.  578,  41  L.  Ed.  560.  17  Sup. 

Food  Products,  4  I.  C.  C.  48,  116.  Ct.    198;    Knoxville    v.    Knoxville 

''Grain    Shippers'    Asso.    v.    111.  Water    Co..    212    U.    S.    1,    53    L. 

Cent.     R.     Co.,    8     I.     C.     C.     158,  Ed.    371,    29    Sup.    Ct.    148;    Brab- 

1S2.     See  also   Re   Proposed  Ad-  ham  v.  Atlantic  C.  L.  R.   Co.,  11 

vance  in  Freight  Rates,  9  I.  C.  C.  I.  C.  C.  464,  473;  Wilcox  v.  Con- 

382,  where  is  found  a  full  discus-  solidated   Gas   Co.,  212  U.   S.   19, 

sion    of   the   question.  >  53    L.    Ed.    382,    29    Sup.    Ct.    192, 

"  Smyth    V.     Ames     (Nebraska  15  Ann.  Cas.  1034. 


146  Charges  by  Common  Carriers  [§  82. 

employed  in  serving  the  public,  it  must  be  remembered  that 
such  a  test  is  not  absolute  and,  at  times,  yields  to  the  public  in- 
terest and  the  rule  as  to  the  value  of  service,  both  of  which  are 
discussed  hereinafter.  The  cost  and  value  of  the  railroad  proper- 
ties are  among  the  various  facts  which  may  be  considered 
in  determining  what  in  a  particular  case  constitutes  a  reasona- 
ble rate. 

The  value  of  property  employed  for  the  public  convenience  is 
an  important  element  in  determining  the  reasonableness  of  a 
whole  schedule  of  rates.  It  can  be  of  little  value  in  determining 
the  reasonableness  of  rates  on  a  particular  commodity.  This  is 
true  because  no  method  has  ever  yet  been  devised  by  which  the 
cost  of  moving  a  particular  commodity  can  be  determined. 
Whether  or  not  such  commodity  is  bearing  its  proper  proportion 
of  the  charges  that  must  be  received  to  make  "a  fair  return"  to 
the  carrier  is  a  question  that  can  not  yet,  if  ever,  be  answered. 
It  is  true  that  certain  out-of-pocket  expenses  can  be  allocated, 
but  the  proportion  of  the  cost  of  maintenance,  general  superin- 
tendence and  other  general  expenses  which  should  be  charged 
against  a  particular  movement  can  not  be  determined  with  any 
degree  of  certainty.  The  rule  announced  in  Smyth  v.  Ames 
supra,  is  as  follows : 

"We  hold,  however,  that  the  basis  of  all  calculations  as  to  the 
reasonableness  of  rates  to  be  charged  by  a  corporation  maintain- 
ing a  highway  under  legislative  sanction  must  be  the  fair  value 
of  the  property  being  used  by  it  for  the  conveyance  of  the  pub- 
lic. And,  in  order  to  ascertain  that  value,  the  original  cost  of 
construction,  the  amount  expended  in  permanent  improvements, 
the  amount  and  market  value  of  its  bonds  and  stock,  the  present 
as  compared  with  the  original  cost  of  construction,  the  proba- 
ble earning  capacity  of  the  property  under  particular  rates  pre- 
scribed by  statute,  and-  the  sum  required  to  meet  operating  ex- 
penses, are  all  matters  for  consideration,  and  are  to  be  given 
such  weight  as  may  be  just  and  right  in  each  case.  We  do  not 
say  that  there  may  not  be  other  matters  to  be  regarded  in  esti- 
mating the  value  of  the  property.  AMiat  the  company  is  enti- 
tled to  ask  is  a  fair  return  upon  the  value  of  that  which  it  em- 
ploys for  the  public  convenience.  On  the  other  hand,  what  the 
public  is  entitled  to  demand  is  that  no  more  be  exacted  from 
it  for  the  use  of  a  public  highway  than  the  services  rendered  by 
it  are  reasonably  worth." 


§  82.]  Must  Be;  Reasonable.  147 

It  should  be  kept  in  mind  that  this  oft  quoted  rule  formu- 
lated by  the  Supreme  Court  was  announced  in  a  suit  to  enjoin 
an  act  "To  Regulate  Railroads,  to  Classify  Freights,  to  Fix 
Reasonable  Maximum  Rates  to  be  Charged  for  the  Transporta- 
tion of  Freights  upon  Each  of  the  Railroads  in  the  State  of 
Nebraska,  and  to  Provide  Penalties  for  the  Violation  of  this 
Act."  While  the  rule  is  a  correct  rule  of  law,  as  limited  by  the 
last  sentence  of  the  foregoing  quotation,  when  considered  in 
reference  to  a  general  schedule  of  rates.  It  can  aol  be  practically 
applied  to  a  particular  rate.  Even  with  reference  to  a  general 
schedule  of  rates  it  should  be  construed  in  connection  with  the 
decision  of  the  case  of  Covington  &  Lexington  Turnpike  R.  Co. 
V.  Sanford,--  where  the  same  distinguished  Judge,  Mr.  Justice 
Harlan,  who  wrote  the  opinion  in  Smyth  v.  Ames,  said : 

"It  is  proper  to  say  that  if  the  answer  had  not  alleged,  in 
substance,  that  the  tolls  prescribed  by  the  Act  of  1890  were 
wholly  inadequate  for  keeping  the  road  in  proper  repair  and 
for  earning  dividends,  we  could  not  say  that  the  act  was  un- 
constitutional merely  because  the  company  (as  was  alleged  and 
as  the  demurrer  admitted)  could  not  earn  more  than  4  per  cent 
on  its  capital  stock.  It  cannot  be  said  that  a  corporation  operat- 
ing a  public  highway  is  entitled,  as  of  right,  and  without  refer- 
ence to  the  interests  of  the  public,  to  realize  a  given  per  cent 
upon  its  capital  stock.  When  the  question  arises  whether  the 
legislature  has  exceeded  its  constitutional  power  in  prescribing 
rates  to  be  charged  by  a  corporation  controlling  a  public  high- 
way, stockholders  are  not  the  only  persons  whose  rights  or  in- 
terests are  to  be  considered.  The  rights  of  the  public  are  not 
to  be  ignored.  It  is  alleged  here  that  the  rates  prescribed  are 
unreasonable  and  unjust  to  the  company  and  its  stockholders. 
But  that  involves  an  inquiry  as  to  what  is  reasonable  and  just 
for  the  public.  If  the  establishing  of  new  lines  of  transportation 
should  cause  a  diminution  in  the  number  of  those  who  need  to 
use  a  turnpike  road,  and,  consequently,  a  diminution  in  the  tolls 
collected,  that  is  not,  in  itself,  a  sufficient  reason  why  the  cor- 
poration, operating  the  road,  should  be  allowed  to  maintain  rates 
that  would  be  unjust  to  those  who  must  or  do  use  its  property. 
The  public  cannot  properly  be  subjected  to  unreasonable  rates 

^- Supra  Note  21. 


148  Charges  by  Commox  Carriers  [§  82. 

in  order  simply  that  stockholders  may  earn  dividends.  The  leg- 
islature has  the  authority  in  every  case,  where  its  power  has 
not  been  restrained  by  contract,  to  proceed  upon  the  ground  that 
the  public  may  not  rightfully  be  required  to  submit  to  unrea- 
sonable exactions  for  the  use  of  a  public  highway  established 
and  maintained  under  legislative  authority.  If  a  corporation 
cannot  maintain  such  a  highway  and  earn  dividends  for  stock- 
holders, it  is  a  misfortune  for  it  and  them  which  the  constitution 
does  not  require  to  be  remedied  by  imposing  unjust  burdens 
upon  the  public." 

Value  given  to  property  by  reason  of  its  excessive  earning 
power  should  not  be  considered,  although  the  reasonable  value 
of  a  franchise  is  an  element  in  arriving  at  the  total  value  of 
property. 

The  amendment  giving  to  the  Interstate  Commerce  Commis- 
sion jurisdiction  to  make  a  valuation  of  the  carrier's  property  ^^ 
will,  when  the  work  thereunder  is  completed,  furnish- a  valuation 
which  can  be  used  in  rate-making  and  rate-judging.  In  the  mean- 
time the  "cost  of  road  and  equipment"  furnishes  a  "usable" 
basis  which  the  Commission  applies.-*  In  rate-judging  and  rate- 
making  by  an  administrative  body  performing  the  legislative 
function  of  determining  what  shall  be  the  rate  for  the  future,  a 
different  question  is  presented  from  that  which  arises  when  a 
court  has  for  determination  the  question  of  the  confiscatory 
character  of  a  rate  prescribed  by  a  quasi-legislative  tribunal. 
The  Commission  may  and  should  consider  all  questions  affect- 
ing the  movement  of  the  particular  traffic,  such  as  competition, 
classification,  the  public  interests,  and  all  of  the  elements  which 
enter  into  the  general  question  of  reasonableness.  In  considering 
the  questions  so  presented.  Commissioners  have  to  survey  a  wider 
field  and  have  greater  latitude  than  the  courts,  which  are  limited 
to  the  question,  does  the  rate  involved  constitute  in  substance 
the  taking  of  property  without  due  compensation.  This  question 
is  discussed,  sec.  46  supra. 


''Sec.   420,   post.  Cent   Case,   31   I.   C.   C.   351,  32   I. 

^Advances    in    Rates,    Eastern  C.  C.  325;  Western  Rate  Advance 

Case,    20    I.    C.    C.    243,    Western  Case  1915,  35  I.  C.  C.  497. 
Case,   20   I.   C.    C.   307;    Five   Per 


\ 


§  83.]  Must  Be  Reasonable.  149 

§  83.  Cost  of  Carrier's  Equipment — What  Is  a  Reason- 
able Return. — On  the  question  of  what  is  a  reasonable  return, 
the  Supreme  Court  has  said :  -•^ 

"There  is  no  particular  rate  of  compensation  which  must  in 
all  cases  and  in  all  parts  of  the  country  be  regarded  as  sufficient 
for  capital  invested  in  business  enterprises.  Such  compensation 
may  depend  greatly  upon  circumstances  and  locality ;  among 
other  things,  the  amount  of  risk  in  the  business  is  a  most  im- 
portant factor,  as  well  as  the  locality  where  the  business  is  con- 
ducted and  the  rate  expected  and  usually  realized  there  upon  in- 
vestments of  a  somewhat  similar  nature  with  regard  to  the  risk 
attending  them.  There  may  be  other  matters  which  in  some 
cases  might  also  be  properly  taken  into  account  in  determining 
the  rate  which  an  investor  might  properly  expect  or'  hope  to 
receive  and  which  he  would  be  entitled  to  without  legislative 
interference.  The  less  risk,  the  less  right  to  any  unusual  returns 
upon  the  investment." 

In  this  case  the  whole  schedule  of  rates  was  involved  and  six 
per  cent  was  held  to  be  reasonable,  the  court  saying:  "Taking 
all  facts  into  consideration,  we  concur  with  the  court  below  on 
this  question,  and  think  complainant  is  entitled  to  six  per  cent 
on  the  fair  value  of  its  property  devoted  to  the  public  use." 

In  the  Knoxville  Water  Case,^^  the  Supreme  Court  announced 
a  rule  as  to  depreciation  as  follows : 

"Before  coming  to  the  question  of  profit  at  all  the  company 
is  entitled  to  earn  a  sufficient  sum  annually  to  provide  not  only 
for  current  repairs  but  for  making  good  the  depreciation  and 
replacing  the  parts  of  the  property  when  they  come  to  the  end 
of  their  life.  The  company  is  not  bound  to  see  its  property 
gradually  waste,  without  making  provision  out  of  earnings  for 
its  replacement.  It  is  entitled  to  see  that  from  earnings  the 
value  of  the  prope;rty  invested  is  kept  unimpaired,  so  that  at  the 
end  of  any  given  term  of  years  the  original  investment  remains 
as  it  was  at  the  beginning.  It  is  not  only  the  right  of  the  com- 
pany to  make  such  a  provision,  but  it  is  its  duty  to  its  bond 
and  stockholders,  and,  in  the  case  of  a  public  service  corporation 
at  least,  its  plain  duty  to  the  public.     If  a  different  course  were 


^ Supra   Note   21,   this   chapter?  '"Supra  Note  21,  this  chapter. 

Consolidated    Gas   Co.  case. 


150  Charges  by  Common  Carriers  [§  84. 

pursued  the  only  method  of  providing  for  replacement  of  prop- 
erty which  has  ceased  to  be  useful  would  be  the  investment  of 
new  capital  and  the  issue  of  new  bonds  or  stocks." 

The  rule  has  no  application  to  the  rates  charged  by  express 
companies.     Mr.  Commissioner  Prouty  said  :  -" 

"In  passing  upon  an  entire  schedule  of  railway  rates  (and 
when  in  this  proceeding  we  pass  upon  the  base  rate  of  these 
defendants  we  really  consider  their  entire  schedule)  the  con- 
trolling factor  is  the  value  of  the  property  which  is  devoted  to 
the  public  service.  The  cost  of  originally  producing  or  of  re- 
producing that  property  is  an  important  consideration,  as  is  also 
the  capitalization  of  the  company  and  the  value  of  its  securities. 
In  revising  the  rates  of  these  express  companies  those  consider- 
ations can  have  but  little  weight,  since  there  is  no  real  relation 
between  the  value  of  the  property  and  the  service  performed, 
nor  in  the  case  of  these  companies,  between  their  capital  stock 
and  just  earnings." 

Increased  cost  of  labor  and  equipment  makes  the  cost  of  serv- 
ice higher,  but  this  is  generally  offset  by  increased  efficiency. 
This  question  is  interestingly  discussed  and  valuable  tables  given 
in  the  case  of  Re  Class  and  Commodity  Rates  from  St.  Louis 
to  Texas  Common  Points,  11  I.  C.  C.  238,  et  seq.,  and  in  Sec. 
47  supra,  other  cases  are  cited  and  discussed. 

§  84.  Same  Subject.  Difficulties  in  Determining  the 
Question. — It  is  easy  to  state  the  fundamental  rule  announced 
in  Smyth  r.  Ames,  supra,  that  the  fair  value  of  the  property 
used  for  the  public  convenience  shall  be  taken  as  a  basis  for 
determining  the  reasonableness  of  a  schedule  of  rates,  but  the 
difficulty  arises  in  determining  what  is  a  "fair  value" — Who  is 
to  fix  this  value?  \A4'iat  facts  must  of  necessity  be  considered 
in  arriving  at  this  determination? 

Primarily  the  rate-making  body  must  determine  what  the  fair 

value  is,  and  such  determination  has  a  force  which  the  courts 

must    regard.      In    the    ]\Iinnesota    Rate    Cases, -^    the    Supreme 

Court   said :      "The    rate-making  power   is    a    legislative   power, 

.  and  necessarily  implies  a  range  of  legislative  discretion.     We  do 

''Kindel  v.  Adams  Express  Co.,  33  Sup.  Ct.  729,  citing  San  Diego 

13   I.   C.   C.  475,  485.  Land  &  Town  Co.  v.  Jasper,  189 

=' Simpson    v.    Shepard.    230    U.  U.   S.  439,   446,   47   L.    Ed.   892,   23 

S.    352,   433,    434.    57    L.    Ed.    1511,  Sup.    Ct.    571. 


§  84.]  Must  Be  Reasonable.  '    151 

not  sit  as  a  board  of  revision  to  substitute  our  judgment  for 
that  of  the  Legislature,  or  of  the  commission,  lawfully  consti- 
tuted by  it,  as  to  matters  within  the  province  of  either."  While 
this  is  true,  neither  a  legislature  nor  a  commission  can  confiscate 
the  property  of  a  public  utility  company,  and  the  courts  must 
therefore  determine,  when  properly  applied  to,  whether  or  not 
a  particular  rate  or  schedule  of  rates  violates  the  constitutional 
rights  of  the  carrier  or  other  person  or  corporation  engaged  in 
a  public  service,  whose  rates  have  been  prescribed  by  the  legis- 
lature, or  under  its  authority.  Congress  has  empowered  the  In- 
terstate Commerce  Commission  to  make  a  physical  valuation  of 
railroads,  but  to  do  this  will  require  years  and  even  when  it  is 
done  the  question  will  not  be  entirely  settled.  In  the  Minnesota 
Rate  Cases,  snl^ra  much  testimony  was  taken  as  to  value,  relative 
cost,  expenses,  etc.,  but  the  Supreme  Court  rejected  the  proof 
as  not  adequate — the  Court  did  however  announce  certain  gen- 
eral and  fundamental  principles.  It  was  there  held  that  (1)  the 
basis  of  the  calculation  is  the  fair  value  of  the  property,  used  for 
the  convenience  of  the  public  ;  (2)  that  such  value  was  not  to  be 
determined  by  arbitrary  rules,  but  cost  of  construction  of  im- 
provements, the  market  value  of  stock  and  bonds,  the  present 
as  compared  with  the  original  cost  of  construction  the  probable 
earning  capacity  under  the  rates  prescribed  must  be  considered. 
And  after  quoting  from  Smyth  z>.  Ames  the  Court  concluded  "We 
do  not  say  there  may  not  be  other  matters  to  be  regarded  in  de- 
termining the  value  of  the  property."  And  when  a  carrier  is  en- 
gaged in  both  interstate  and  intrastate  transportation,  and  a  rate 
is  prescribed  for  intrastate  movements  the  court  announced  a 
third  principle  as  follows :  The  ciuestion  "must  be  determined 
by  considering  separately  the  value  of  the  property  employed  in 
the  intrastate  business,  and  the  compensation  allowed  in  the  bus- 
iness under  the  rule  prescribed." 

In  the  Indiana  case  -^  further  emphasis  was  given  to  the  fact 
that  prescribing  rates  was  a  legislative  function,  and  when  rates 
are  so  prescribed  by  a  lawfully  authorized  tribunal  the  carriers 
seeking  to  set  them  aside  must  make  definite  and  satisfactory 
proof. 

In  the  1910  W'estern  Rate  Advance  case  it  was  contended  upon 

'"Wood  V.  Vandalia  R.  Co.,  231       U.    S.    1,    58    L.    Ed.    97,    34    Sup. 

Ct.    7. 


152 


Charges  by  Common  Carriers 


:§  84. 


the  part  of  one  of  the  carriers  that  "it  is  immaterial  how  the 
property  was  acquired,  what  it  originally  cost,  whether  the  pres- 
ent value  may  be  claimed  to  be  in  part  the  result  of  earnings 
put  back  into  the  property  in  betterments  or  is  due  to  growth 
of  traffic  and  development  of  the  country  served."  ^°  This  con- 
tention was  denied  by  the  Commission,  Mr.  Commissioner  Lane 
saying : 

"Notwithstanding  these  decisions,^  it  remains  for  the  Supreme 
Court  yet  to  decide  that  a  public  agency,  such  as  a  railroad  cre- 
ated by  public  authority,  vested  with  governmental  authority, 
may  continuously  increase  its  rates  in  proportion  to  its  value, 
either  ( 1 )  because  of  betterments  it  has  made  out  of  income, 
or  (2)  because  of  the  growth  of  the  property  in  value  due  to 
the  increase  in  the  value  of  the  land  which  the  company  owns." 

This  answer  is  fully  supported  by  the  subsequent  decision  of 
the  Supreme- Court  in  the  Minnesota  Rate  Cases  and  other  like 
state  rate  cases  decided  about  the  same  time.^^  This  principle 
must  not,  however,  be  given  too  broad  an  application.  Construed 
in  the  light  of  the  decisions  cited  it  does  not  deny  a  carrier  re- 
turns on  investments  merely  because  such  investments  may  have 
been  made  from  earnings  or  may  have  resulted  from  an  increase 


^"  Advances  in  Rates,  Western 
Case,  20  I.  C.  C.  307,  339.  In 
support  of  this  claim  these  cases 
were  cited:  Ames  v.  Union  Pac. 
Ry.  Co.,  64  Fed.  165;  Reagan  v. 
Farmers  Loan  &  Trust  Co.,  154 
U.  S.  362,  38  L.  Ed.  1014,  14  Sup. 
Ct.  1047;  Missouri,  K.  &  T.  Ry. 
Co.  V.  Love,  177  Fed.  493;  Ken- 
nebec Water  Co.  v.  Waterville, 
97  Me.  185,  54  Atl.  6;  National 
Water  Works  Co.  v.  Kansas  City, 
62  Fed.  853;  Metropolitan  Trust 
Co.  V.  Houston  &  T.  C.  R.  Co., 
90  Fed.  683;  San  Diego  Land  & 
Town  Co.  V.  National  City,  74 
Fed.  79;  Matthews  v.  Board  of 
Commissioners,  106  Fed.  9. 

^^  Simpson  v.  Shepard — Minne- 
sota Rates  Cases — 230  U.  S.  352, 
57  L.  Ed.  1511,  33  Sup.  Ct.  729; 
Knott    V.    Chicago,    B.    &    Q.    R. 


Co. — Missouri  Rate  Cases — 230 
U.  S.  474,  57  L.  Ed.  1571,  33  Sup. 
Ct.  975;  Chesapeake  &  O.  R.  Co. 
V.  Conley — West  Virginia  Rate 
Cases— 230  U.  S.  513,  57  L.  Ed. 
1597,  33  Sup.  Ct.  985;  Southern 
Pac.  Co.  V.  Campbell,  Oregon  R. 
&  Nav.  Co.  V.  Campbell — Oregon 
Rate  Cases— 230  U.  S  525,  537, 
57  L.  Ed.  1610,  33  Sup.  Ct.  1027; 
Allen  V.  St.  Louis,  L  M.  &  S.  Ry. 
Co. — Arkansas  Rate  Cases — 230 
U.  S.  553,  57  L.  Ed.  1625,  33  Sup. 
Ct.  1030;  Wood  V.  Vandalia  R. 
Co. — Indiana  Rate  Ca:se— 231  U. 
S.  1,  58  L.  Ed.  97,  34  Sup. 
Ct.  7;  Louisville  &  N.  R.  Co.  v. 
Garrett — Kentucky  Rate  Case — 
231  U.  S.  298,  58  L.  Ed.  229,  34 
Sup.  Ct.  48.  See  also  Sec.  46 
Supra  and  notes  39,  47  and  43 
this    chapter. 


§  85. J  Must  Be  Reasonable.  153 

in  the  value  of  the  original  investment,  but  the  principle  would 
prevent  charging  unreasonable  rates  even  though  such  rates 
were  necessary  to  earn  a  fair  return  on  the  investment. 

§  85.  Cost  of  Service. — The  value  of  the  equipment  of  a 
common  carrier,  is  an  element  in  determining  what  it 
costs  to  transport  any  particular  commodity,  and  what  such  cost 
is,  that  is  the  "cost  of  service,"  is  a  fact  that  is  properly  consid- 
ered in  determining  what  is  a  reasonable  and  just  rate  to  be 
charged.^-  This  item  will  be  seen  referred  to  by  the  Interstate 
Commerce  Commission  frequently  in  its  opinions  determining 
whether  or  not  the  rates  under  discussion  are  or  are  not  reason- 
able. The  Supreme  Court,  speaking  of  the  commission,  says : 
"The  tribunal  may  and  should  consider  the  legitimate  interests 
as  well  of  the  carrying  companies  as  of  the  traders  and  ship- 
pers." 3^  In  considering  a  proposed  advance  in  freight  rates, ^* 
Mr.  Commissioner  Prouty  first  considers  the  question  "is  the  rate 
reasonably  estimated  by  the  cost  and  value  of  the  service?"  In 
another  case,^^  Mr.  Commissioner  Clements  said:  "The  test  of 
the  reasonableness  of  a  rate  is  not  the  amount  of  the  profit  in  the 
business  of  the  shipper  or  manufacturer,  but  whether  the  rate 
yields  a  reasonable  compensation  for  the  services  rendered."  Cost 
of  service,  however,  can  not  be  made  an  absolute  guide  in  fixing 
rates.  District  Judge  Bethea  ^"^  well  says:  "The  cost  of  serv- 
ice to  a  carrier  would  be  an  ideal  theory,  but  it  is  not  practicable. 
Such  cost  can  be  reached  approximately,  but  not  accurately 
enough  to  make  this  factor  controlling.  It  is  worthy  of  consid- 
eration, however."     Judge  Clements   expressed  the  rule  of  the 

commission  as  follows  :  ^^ 

• 

'^  Re    Alleged    Excessive    Rates  Com.   Com.,   162  U.  S.   197,  40  L. 

on   Food  Products,  4  I.   C.   C.  48,  Ed.   940,   16   Sup.   Ct.   666,   5   I.    C. 

3  I.  C.  R.  93;  Schumacher  Milling  R.  405. 

Co.   V.    Chicago,    R.    I.   &   P.    Ry.  ^*  Re      Proposed      Advance     in 

Co.,  6  I.  C.  C.  61,  4  I.  C.  R.  373;  Freight  Rates,   9  I.   C.   C.  382. 

Re  Proposed  Advances  in  Freight  "^  Central  Yellow  Pine  Asso.  v. 

Rates,  9  I.   C.   C.  382;   Int.   Com.  III.  Cent.  R.  Co.,  10  I.  C.  C.  505. 

Com.  V.   Chicago  G.  W.  Ry.   Co.,  'Mnt.    Com.    Com.    v.    Chicago 

141    Fed.    1003,    1015.      Separation  Great  W.    R.   Co.,   141   Fed.   1003, 

of  Operating  Expenses,   30   I.   C.  1015,   and   cases   cited.     Affirmed, 

C.  676,  678;  Coal  Rates  from  Vir-  same  style  case,  209  U.  S.  108,  52 

ginia,    30    I.    C.    C.    635,    646;    and  L.  Ed.  705,  28  Sup.  Ct.  493. 

cases  cited.  "  Cannon    v.    Mobile    &    O.   R. 

''Tex.    &   Pac.    Ry.    Co.   v.    Int.  Co.,  11  I.  C.  C.  537,  542. 


154  Charges  by  Common  Carriers  [§  86. 

"While  in  the  relative  adjustment  of  rates  as  between  places 
on  its  line  a  carrier  cannot  rightfully  ignore  the  relative  cost 
to  it  of  the  respective  services  rendered  by  it,  and  since  it  ordi- 
narily costs  more  to  haul  freight  a  longer  distance  than  a  shorter 
one,  the  carrier  cannot  rightfully  ignore  substantial  differences 
in  distance  where  all  other  circumstances  and  conditions  are 
equal,  or  substantially  similar.  There  are  other  matters  of  equal 
importance  to  that  of  cost  of  the  service  and  often  more  con- 
trolling which  must  also  be  considered.  Among  these  is  compe- 
tition both  of  carriers  and  of  markets.  The  greater  the  inequal- 
ity or  dissimilarity  in  other  potent  circumstances  or  conditions 
the  less  controlling  becomes  the  matter  of  relative  cost." 

In  determining  the  cost  of  service  Mr.  Commissioner  Clements 
said :  "Expenditures  for  additions  to  construction  and  equip- 
ment should  be  reimbursed  by  all  the  traffic  they  accommodate 
during  the  period  of  their  duration,  and  improvements  that  will 
last  many  years  should  not  be  charged  wholly  against  the  reve- 
nue of  a  single  year.'"  ^^  The  principle,  however,  must  be  ap- 
plied in  connection  with  the  holding  in  the  Knoxville  Water  Co. 
case,^*'  that  earnings  should  be  sufficient  to  pay  a  reasonable  re- 
turn on  the  property  employed  in  the  public  service  and  pro- 
vide against  depreciation.  "Cost  of  service,"  could  not,  in  any 
event,  require  an  unreasonable  rate,  and,  under  some  circum- 
stances, a  carrier  may  be  compelled  to  perform  a  particular  serv- 
ice to  the  public  at  an  actual  loss. 

§  86.  Cost — When  Carrier's  Duty  to  Furnish  Service.— 
In  Atlantic  C.  L.  R.  Co.  z'.  North  Carolina  Corporation  Com- 
mission ^^  the  Supreme  Court  had  under  consideration  an  order 
of  the  North  Carolina  Commission  requiring  the  carrier  to  make 
a  particular  connection  with  certain  passenger  trains.  To  do 
this  the  carrier  had  to  put  on  an  extra  train  at  a  loss.  The  Su- 
preme Court  sustained  the  order  of  the  North  Carolina  Commis- 
sion, saying : 

"But  this  case  does  not  involve  the  enforcement  by  a  state  of 

''Central  Yellow  Pine  Asso.  v.  Co.,  212  U.  S.  1.  53  L.  Ed.  371,  2.1 

111.  Cent.  R.  Co.,  10  I.  C.  C.  505;  Sup.  Ct.  US. 

111.  Cent.  R.  Co.  v.  Int.  Com.  Com.,  '"Atlantic  Coast  Line  R.  Co.  v. 

206  U.  S.  441,  461,  51  L.  Ed.  112S.  North    Carolina    Corp.    Com.,   206 

1136,   27    Sup.    Ct.   700.  U.  S.  1.  24.  25.  51  L.  Ed.  933,  944, 

''  Knoxville  v.  Knoxville  Water  27  Sup.  Ct.  5S5,  11  Ann.  Cas.  39S. 


§  87.]  Must  Be  Reasonable.  155 

a  general  scheme  of  maximum  rates,  but  only  whether  an  exer- 
cise of  state  authority  to  compel  a  carrier  to  perform  a  particu- 
lar and  specified  duty  is  so  inherently  unjust  and  unreasonable 
as  to  amount  to  the  deprivation  of  property  without  due  process 
of  law  or  a  denial  of  the  equal  protection  of  the  laws.  In  a 
case  involving  the  validity  of  an  order  enforcing  a  scheme  of 
maximum  rates,  of  course  the  finding  that  the  enforcement  of 
such  scheme  will  not  produce  an  adequate  return  for  the  opera- 
tion of  the  railroad,  in  and  of  itself,  demonstrates  the  unrea- 
sonableness of  the  order.  Such,  however,  is  not  the  case  when 
the  question  is  as  to  the  validity  of  an  order  to  do  a  particular 
act,  the  doing  of  which  does  not  involve  the  question  of  the 
profitableness  of  the  operation  of  the  railroad  as  an  entirety. 
The  difiference  between  the  two  cases  is  illustrated  in  St.  Louis 
&  S.  F.  R.  Co.  V.  Gill,  156  U.  S.  649,  39  L.  Ed.  567,  15  Sup.  Ct. 
Rep.  484,  and  Minneapolis  &  St.  L.  R.  Co.  v.  Minnesota,  186  U. 
S.  257,  46  L.  Ed.  1151,  22  Sup.  Ct.  Rep.  900.  But  even  if  the 
rule  applicable  to  an  entire  rate  scheme  were  to  be  here  applied, 
as  the  findings  made  below  as  to  the  net  earnings  constrain  us 
to  conclude  that  adequate  remuneration  would  result  from  the 
general  operation  of  the  rates  in  force,  even  allowing  for  any 
loss  occasioned  by  the  running. of  the  extra  train  in  question,  it 
follows  that  the  order  would  not  be  unreasonable,  even  if  tested 
by  the  doctrine  announced  in  Smyth  v.  Ames  and  kindred  cases." 
§  87.  Cost  of  Service,  Continued. — That  cost  of  service 
should  be  considered  in  determining  the  reasonableness  of  a  rate 
or  a  schedule  of  rates  is  but  a  corollary  of  the  proposition  that 
each  is  entitled  to  his  own,  but  this  principle,  like  all  abstract 
principles,  must  be  regarded  as  merely  a  fact  to  be  considered, 
and  not  an  inflexible  rule  to  be  followed.  The  principle  must 
be  considered  in  connection  with  all  the  circumstances  surround- 
ing the  transportation,  the  rate  for  which  is  sought  to  be  deter- 
mined. Regardless  of  cost  of  service,  some  traffic  can  and  should 
bear  a  higher  rate  than  other  traffic ;  it  is  impossible  to  determine 
with  accuracy  the  cost  of  moving  a  particular  kind  of  traffic  as, 
under  present  systems  of  accounting,  cost  of  each  different  serv- 
ice can  not  be  allocated.  But,  as  was  said  by  Mr.  Commissioner 
Lane,"*^  "once  we  have  learned  the  comparative  costs  for  various 
services,  it  is  not  fanciful  to  say  that  a  schedule  of  rates  may 

"Advance    in     Rates,    Western       Case.  20   I.   C.   C.  307,  362. 


156  Charges  by  Common  Carriers  [§  87. 

be  made  which  will  approach  justice  as  between  services.  Sup- 
plement cost  with  scientific  classification  of  freight,  giving  their 
due  to  all  the  various  factors,  such  as  value,  bulk,  and  hazard — 
especially  to  value — adding  return  for  use  of  plant,  and  we  have 
something  certainly  more  nearly  akin  to  reason  than  the  hazard 
of  a  traffic  manager,  no  matter  how  benevolently  inclined.  Such 
a  theory  gives  force  to  every  factor  which  the  Supreme  Court 
has  said  should  be  considered  in  the  fixing  of  rates  for  public 
utilities.  The  investor  would  have  his  return,  and  the  value  of  the 
property  would  be  cared  for  as  a  part  of  the  rate,  though  this 
return  would  of  course  vary  with  the  rates  as  at  present,  one 
service  making  a  larger  return  to  capital  than  another." 

But,  until  the  facts  suggested  by  the  Commissioner  are  avail- 
able, "the  cost  of  the  service"  is  one  of  the  factors  to  be  con- 
sidered in  determining  the  reasonableness  of  rates.  But,  neither 
the  cost  of  the  service,  nor  any  of  the  other  factors,  of  which 
there  are  many,  can  be  taken  alone  as  conclusive."  ^- 

Business  conditions,  the  necessity  for  a  rate  lower  than  the 
one  under  which  the  traffic  moves,  its  low  value  in  comparison 
with  its  weight,  and  other  considerations,  make  it  proper  that 
some  traffic  shall  bear  less  than  its  proportion  of  the  cost  of  serv- 
ice. Sometimes,  were  a  particular  traffic  charged  with  its  propor- 
tion of  the  cost  of  service,  it  would  not  move  at  all.  The  public 
welfare  demands  that  such  traffic  shall  move ;  the  carrier  loses 
nothing  in  conceding  a  low  rate  to  such  traffic  if  the  rate  exceeds, 
however  little,  the  out-of-pocket  cost.  The  carrier's  equipment 
must  be  maintained,  and  the  general  expenses  must  go  on,  even 
though  the  traffic  does  not  move.  These  considerations  underlie 
the  statement  of  the  Commerce  Court  :^^     "That  relative  freight 

*^  Mr.     Commissioner    Clark    in  the    text   was    fortified   bj'   citing: 

Coke    Producers    Association     of  Alinneapolis    St.    L.     R.     Co.     v. 

the  Cornellsville  Region  v.  Balti-  Minnesota,    186   U.    S.   257,   46    L. 

more    &   O.    R.    Co.,    27    I.    C.    C.  Ed.   115],  22  Sup.  Ct.  900;  St.  L. 

125,   140.  &  S.   F.   R.   Co.  V.   Gill,   156  U.   S. 

''Atchison,  T.  &  S.  F.  Ry.  Co.  649,    39    L.    Ed.    567,    15    Sup.    Ct. 

V.  United  States,  203  Fed.  56,  59;  484;     Atlantic     C.    L.     R.     Co.    v. 

Commerce  Court  Opinion  No.  61,  North    Carolina    Corp.    Com.,   206 

537,   Lemon   Rate   Case;   affirmed  U.    S.    1,   51    L.    Ed.   933,   27    Sup. 

by  the  Supreme  Court,  Atchison,  T.  Ct.    585,    11    Ann.    Cas.    398.      To 

&  S.  F.  Ry.  Co.  V.  United  States,  the   same   effect   see  Texas   &   P. 

231  U.  S.  736.     The  statement  of  Ry.  Co.  v.  R.  R.  Com.  of  La.,  192 

the    Commerce    Court    quoted    in  Fed.  280,   112   C.   C.  A.  523. 


§  87.]  yivsr  Be  Reasonable.  157 

rates  have  not  been  based  upon  the  fair,  proportionate  cost  or 
value  of  the  service  alone  or  in  combination,  is  demonstrated  by 
the  entire  history  of  freight  classification.  The  carrier  can  not 
complain  of' a  violation  of  its  constitutional  rights  if,  not  to  favor 
some  person  or  class,  but  for  the  general  welfare,  it  is  compelled 
to  make  a  rate  for  some  particular  service  which,  though  in  ex- 
cess of  the  out-of-pocket  expense,  would  nevertheless  be  confis- 
catory, if  it  were  applied  to  all  its  freight ;  that  is,  the  carrier 
has  no  constitutional  right  to  a  rate  for  each  distinct  kind  of 
service  which  will  equal  its  proportionate  share  of  the  entire  op- 
erating expense." 

The  language  quoted  from  the  opinion  of  the  Commerce  Court 
is  susceptible  of  misconstruction,  and  it  is  not  without  signifi- 
cance that  no  similar  statement  appears  in  the  affirming  opinion 
of  the  Supreme  Court.  Limiting  the  language  of  the  Commerce 
Court  as  it  was  probably  intended  to  be  limited,  to  the  meaning 
that  an  equal  percentage  over  actual  cost  need  not  be  fixed  for 
the  transportation  of  all  commodities,  the  statement  is  a  correct 
rule  of  law.  That  the  rule  must  be  limited  as  stated  above,  fol- 
lows from  the  decision  of  the  Supreme  Court  annulling  rates  on 
coal  prescribed  under  the  laws  of  North  Dakota.'**  Those  state 
rates  paying  no  more  than  the  actual  cost  to  the  carrier,  were 
prescribed  for  the  avowed  purpose  of  enforcing  a  "public  policy." 
The  state  presented  the  argument  "that  the  rate  was  imposed  to 
aid  in  the  development  of  a  local  industry."  Answering  this 
contention,  ]\Ir.  Justice  Hughes,  delivering  the  opinion  of  the 
court,  said : 

"While  local  interests  ser\-e  as  a  motive  for  enforcing  rea- 
sonable rates,  it  would  be  a  very  difir'erent  matter  to  say  that 
the  state  may  compel  the  carrier  to  maintain  a  rate  upon  a  par- 
ticular commodity  that  is  less  than  reasonable,  or — as  might 
equally  well  be  asserted — to  carry  gratuitously,  in  order  to  build 
up  a  local  enterprise.  That  would  be  to  go  outside  the  carrier's 
undertaking,  and  outside  the  field  of  reasonable  supervision  of 
the  conduct  of  its  business,  and  would  be  equivalent  to  an  appro- 
priation of  the  property  to  public  uses  upon  terms  to  which  the 
carrier  had  in  no  way  agreed."     The  learned  Justice,  that  there 

"Northern  P.  R.  Co.  v.  North  &  W.  R.  Co.  v.  Conley,  236  U. 
Dakota,  236  U.  S.  585,  59  L.  Ed.  S.  605.  59  L.  Ed.,  35  Sup.  Ct. 
35  Sup.  Ct.  429.     See  also  Norfolk       437. 


158 


Charges  by  Common  Carriers 


should  be  no  misunderstanding  of  the  rule,  expressly  referred  the 
principle  that  classification  of  commodities  with  dififerent  ratings 
thereon  was  permissible.  He  said :  "The  legislature  undoubt- 
edly has  a  wide  range  of  discretion  in  the  exercise  of  the 
power  to  prescribe  reasonable  charges,  and  it  is  not  bound 
to  fix  uniform  rates  for  all  commodities,  to  secure  tlie 
same  percentage  of  profit  on  every  sort  of  business.  There 
are  many  factors  to  be  considered — dift'erences  in  the  articles 
transported,  the  care  required,  the  risk  assumed,  the  value  of 
the  service,  and  it  is  obviously  important  that  there  should  be 
reasonable  adjustments  and  classifications."  Nothing  in  this  de- 
cision conflicts  with  the  decision  in  the  Xorth  Carolina  case,  note 
40  supra,  this  chapter.  Thus  the  carrier  was  compelled  to  per- 
form an  absolute  duty  although  in  doing  so  for  a  reasonable 
charge  there  was  a  loss.  In  the  Xorth  Dakota  case  the  court 
held  that  less  than  a  reasonable  rate  could  not  be  required  of  the 
carrier. 

§  88.  Value  of  Service. — The  shipper  cannot  ordinarily  pay 
more  than  the  service  is  worth,  consequently,  from  necessity 
as  well  as  from  a  consideration  of  what  is  just,  the  value  of  the 
service  must  constitute  the  maximum  charge.  Rates  should  be 
proportioned  to  the  value  of  the  service  to  the  shipper.'*^  The 
value  of  the  commodity  enters  into  the  value  of  the  service,  and 
consequently  must  also  be  considered  in  determining  what  con- 
stitutes a  reasonable  rate.'*'^'     That  the  interests  of  the  public  are 


*^  Delaware  State  Grange  v.  New 
York,  etc.,  R.  Co.,  4  I.  C.  C.  58S, 

3  I.  C.  R.  55-4,  561;  Loud  v.  South 
Carolina   R.   Co.,   3    I.   C.    C.   529, 

4  I.  C.  R.  205.  citing  cases. 
Loftus  V.  Pullman  Co..  IS  I.  C. 
C.  135,  140.  difference  in  value  of 
service  between  upper  and  lower 
Pullman  berths.  See  also  Re 
Suspension  of  Western  Classifi- 
cation No.  51,  25  I.  C.  C.  442,  at 
pp.  472,  474,  discussing  princi- 
ples  of  classification. 

^"The  principle  that  the  value 
of  a  particular  commodity  must 
be  considered  in  determining 
what  is  a  reasonable  rate  thereon, 
is  one  which  has  been  applied 
throughout  the  history  of  the  In- 


terstate Commerce  Commission. 
Evans  V.  O.  R.  N.  Co.,  1  I.  C. 
C.  325;  Howell  v.  N.  Y.  L.  E.  & 
W.  R.  Co.,  2  I.  C.  C.  272,  285, 
1  I.  C.  R.  1G2:  Thurber  r.  N.  Y. 
C  &  H.  R.  Co..  3  I.  C.  C.  473, 
503,  2  I.  C.  R.  742;  Re  Excessive 
Rates  on  Food  Products,  4  I.  C.  C. 
48;  Buchanan  v.  N.  P.  R.  Co..  5 
I.  C.  C.  7;  Colorado  F.  &  I.  Co. 
V.  S.  P.  Co.,  6  I.  C.  C.  488,  489; 
Grain  Shippers  Asso.  v.  L.  S.  & 
M.  S.  R.  Co..  9  I.  C.  C.  264,  286; 
Georgia  Peach  Growers  Asso.  v. 
A.  C.  L.  R.  Co..  10  I.  C.  C.  255, 
277:  Tift  V.  So.  Ry.  Co..  10  I.  C. 
C.  548;  National  Machinery  Co.  v. 
P.  C.  C.  &  St.  L.  R.  Co.,  11  I.  C.  C. 
581,  584;  Societv  American  Florists 


•] 


Must  Be  Reasonable. 


159 


important  in  determining  the  reasonableness  of  charges 
by  pubHc  service  corporations,  has  been  announced  by 
the  Supreme  Court  as  an  estabHshed  principle  in  rate  making. 
]\Ir.  Justice  Harlan  says :  *''  "The  public  can  not  properly  be 
subjected  to  unreasonable  rates  in  order  simply  that  stockholders 
may  earn  dividends."  This  view  is  further  supported  by  the 
case  of  Smyth  v.  Ames/^  where  it  was  said:  "It  can  not  be 
admitted  that  a  railroad  corporation  maintaining  a  highway 
under  the  authority  of  the  state  may  fix  its  rates  with  a  view 
solely  to  its  own  interests,  and  ignore  the  rights  of  the  public. 


V.  U.  S.  Express  Co.,  12  I.  C.  C. 
120,  125;  Re  Released  Rates,  13 
I.  C.  €.  550;  Union  Pac.  Tea  Co. 
V.  P.  R.  R.  Co..  14  I.  C.  C.  545, 
547;  Darling  v.  B.  &  O.  R.  Co., 
15  I.  C.  C.  78,  81;  Union  Made 
Garment  Mfr's  Asso.  v.  C.  &  N. 
W.  Ry.  Co.,  16  I.  C.  C.  405,  407; 
Metropolitan  Paving  Brick  Co.  v. 
A.  A.  R.  Co.,  17  I.  C.  C.  197,  205; 
Forest  City  Freight  Bureau  v.  A. 
A.  R.  Co.,  18  I.  C.  C.  205,  206; 
Re  Reduced  Rates  on  Returned 
Shipments,  19  I.  C.  C.  409;  Ford 
Co.  v.  M.  C.  R.  R.  Co..  19  I.  C. 
C.  507,  509;  Advances  in  Rates, 
Western  Case  1910,  20  I.  C.  C. 
307,  355,  where  iNIr.  Lane  said :  "To 
be  sure  we  can  never  depart  from 
the  ad  valorem  principle  in  rate 
making;"  Investigation  of  Ad- 
vances in  Rates  on  Grain,  21  I. 
C.  C.  22,  30,  35;  Investigation 
&  Suspension  Docket,  26  to  26c 
(Coal  Rates),  22  I.  C.  C.  604, 
623;  Minneapolis  Traffic  Asso. 
V.  C.  &  N.  W.  Ry.  Co.,  23 
I.  C.  C.  432,  437;  Bancroft-Whit- 
ney Co.  v.  C.  N.  O.  &  T.  P. 
Ry.  Co.,  24  I.  C.  C.  557,  558; 
Bernheim  v.  O.  R.  &  Nav.  Co., 
25  I.  C.  C.  156,  158;  Union  Tan- 
nery Co.  V.  S.  Ry.  Co.,  26  I.  C. 
C.  159,  163,  where  Mr.  Commis- 
sioner Clements  clearly  and  forci- 
bly    states     the     principle;     Dixie 


Dairy  Men's  Asso.  v.  Y.  &  M. 
V.  R.  Co.,  27  I.  C.  C.  618,  621; 
Scrap  Iron  Rates,  28  I.  C.  C.  525; 
Pardee  Works  v.  C.  R.  R.  Co.,  29 
I.  C.  C.  500,  where  value  was 
under  the  facts  therein,  limited 
to  the  hazard;  but  this  opinion 
is  not  in  accord  with  the  general 
views  of  the  Commission  as  else- 
where expressed;  Rates  on  Flax- 
seed, 29  I.  C.  C.  633,  636;  Mo- 
lasses Rates  to  Knoxville,  30  I. 
C.  C.  313,  314;  Railroad  Com.  of 
Montana  v.  B.  A.  &  P.  Ry.  Co., 
31  I.  C.  C.  641,  652;  Five  Per 
Cent  Case,  31  I.  C.  C.  351,  419; 
Nebraska  State  Ry.  Com.  v.  C.  V. 
R.  Co.,  32  I.  C.  C.  41,  44;  Anson 
Gilkey  &  Htird  Co.  v.  S.  P.  Co., 
33  I.  C.  C.  332,  339,  341;  Des 
Moines  Commodity  Rates,  34  I. 
C.  C.  281,  288;  Western  Rate  Ad- 
vance Case  1915,  35  I.  C.  C.  497, 
606;  and  see  Int.  Com.  Com.  v. 
Chicago  Great  W.  R.  Co.,  141  Fed. 
1003,  1015  and  cases  cited;  North- 
ern Pac.  R.  Co.  V.  North  Dakota, 
236  U.  S.  585,  59  L.  Ed.  — ,  35 
Sup.    Ct.    429. 

"  Covington  &  L.  Turnpike 
Road  Co.  V.  Sandford,  164  U.  S. 
578,  596,  41  L.  Ed.  560,  566,  17 
Sup.   Ct.   198. 

''  Smyth  V.  Ames,  169  U.  S.  466, 
42  L.  Ed.  819,  18  Sup.   Ct.  418. 


160  Charges  by  Common  Carriers  [§  88. 

The  rights  of  the  pubHc  would  be  ignored  if  rates  for  the  trans- 
portation of  persons  or  property  on  a  railroad  are  exacted  with- 
out reference  to  the  fair  value  of  the  property  used  for  the 
public  or  the  fair  value  of  the  services  rendered."  In  San 
Diego  Land  &  Town  Co.  z'.  National  City,'*^  the  Supreme  Court 
reviewed  and  approved  the  case  and  reiterated  the  principle  of 
the  importance  of  considering  "fair  value  ***(-,£  ^j-,g  serv- 
ices   rendered." 

The  "value  of  the  service"  may  mark  the  boundary  beyond 
which  rates  may  not  ordinarily  go,  but  the  rule  can  not  be  at 
all  times  applied.  The  commission  has  held  that  a  difference  in 
the  value  of  two  car  loads  of  peaches  would  not  justify  a  higher 
rate  on  the  more  valuable  car.^"  This  is  true  because  it  is  im- 
practicable to  know  the  exact  value  of  the  service  in  any  case, 
and,  as  will  be  frequently  seen  throughout  this  chapter,  rate 
making  is  not  subject  to  unalterable  theoretical  rules.  Judge 
Bethea  ^^  says  of  the  rule :  "This  is  considered  an  ideal  method, 
when  not  interfered  witli  by  competition  or  other  factors. 
*  *  *  This  method  is  considered  practical  and  is  based  on 
an  idea  similar  to  taxation."  Kirkman,  in  The  Science  of  Rail- 
ways, vol.  8,  pp.  42,  43,  writing  from  the  standpoint  of  a  trained 
railway  man,  says : 

"A  prime  factor  in  determining  the  rates  carriers  charge,  is 
the  value  of  the  service  to  the  shipper.  This  is  the  basis  of  re- 
muneration for  labor  in  every  field  of  industry.  Any  other 
would  be  oppressive,  if  not  prohibitory.  Its  operation  involves 
the  exercise  of  discrimination.  But  discrimination  is  the  in- 
stinct of  trade,  its  intelligent,  directing  and  governing  force. 
The  ignorant,  the  vicious,  and  the  superficial  speak  of  it,  .when 
exercised  by  railroads,  as  something  oppressive,  something  to  be 
discountenanced.  This  is  because  they  do  not  consider  the  anal- 
ogies of  trade,  or  its  merits.  The  charges  of  carriers  can  not 
be  disproportionate  to  the  thing  handled.  If  more  is  charged 
than  I  can  reasonably  pay,  it  prohibits  me  from  doing  business ; 

"  San  Diego  Land  &  Town  Co.  "  Int.  Com.  Com.  v.  Chicago  G. 

V.  National  City,  174  U.  S.  739,  43  W.    R.    Co.,    141    Fed.    1003,    1015, 

L.  Ed.  1154,  19  Sup.  Ct.  S04.  Noyes,   Am.    R.    R.    Rates,   p.    53. 

^  Georgia  Peachgrowers'  Asso.  Int.    Com.    Com.   v.    Baltimore    & 

V.  Atlantic  C.  L.  R.  Co..  10  I.  C.  O.  R.  Co.,  43  Fed.  37,  53,  3  I.  C. 

C.   255.  R.    192. 


§  89.]  Must  Be  Reasonable.  161 

but  if  I  am  charged  what  I  can  afford,  I  am  not  treated  unjustly, 
so  long  as  the  general  profits  of  the  seller  are  not  unreasonable. 
It  is  not  an  act  of  injustice  to  me  that  a  carrier  charges  a  higher 
rate  for  my  blooded  horse  than  for  my  neighbor's  mule,  al- 
though they  both  occupy  the  same  space.  I  can  not  afford  to 
pay  the  same  rate  for  the  brick  used  in  the  construction  of  my 
house  that  I  can  for  the  carpets  that  cover  its  floors.  Rates  are 
based  on  discriminations  of  this  kind,  at  once  practicable,  nec- 
essary, and  wise." 

This  statement  is  correct  as  stating  a  general  rule,  but  the 
rule  is  subject  to  many  modifications.  His  illustration  of  the 
blooded  horse  and  the  mule  is  not  a  safe  application  of  the  rule. 
That  a  horse  may  be  worth  ten  or  twenty  times  as  much  as  a 
mule  makes  the  transportation  service  for  moving  the  horse- 
more  valuable  than  for  moving  the  mule ;  but  when  the  horse  is 
worth  only  a  little  more  than  the  mule,  it  would  be  impossible 
to  grade  the  relative  rates.  Difference  in  value  on  the  same 
kind  of  commodity  can  rarely  be  practically  applied  in  rate  mak- 
ing. Value  of  service  is  more  a  limitation  on  rates  than  a  rea- 
son for  increasing  rates. 

§  89.  Same  Subject — Use  to  Which  Commodity  Put. — 
Mere  diff'erence  in  value  or  use  of  a  different  species  of  the 
same  general  class  of  commodities,  furnishes  no  reason  for  di- 
vergent rates.     The  Commission  has  said  :  ^- 

"It  may  be  fairly  said  in  conclusion  that  the  carriers  in  this 
case  show  no  sufficient  justification  whatsoever  for  discriminat- 
ing between  the  three  kinds  of  fire-clay  brick  involved  in  this 
proceeding.  The  brick  themselves  are  so  nearly  alike  in  color 
that,  being  the  same  size  and  of  the  same  weight,  they  are  prac- 
tically indistinguishable  the  one  from  the  other.  To  make  dif- 
ferent rates  on  each  of  these  brick  is  virtually  to  permit  the 
shipper  to  declare  which  of  the  three  rates  he  chooses  to  impose 
upon  the  freight.  The  receiving  agent  of  the  railroad,  unless 
an  expert  in  fire-clay  brick,  could  not  tell  which  of  the  three 
rates  to  impose  upon  any  one  of  the  three  varieties,  except  by 
inquiring  what  use  was  to  be  made  of  these  brick.     Aside  from 

"Stowe-Fuller   Co.   v.   Pennsyl-       Ann    Arbor    R.    Co..    17    I.    C.    C. 
vania    Co.,    12    I.    C.    C.    215.    220;        197. 
Metropolitan   Paving  Brick   Co.  r. 

—6 


162  Charges  by  Common  Carriers  [§  89. 

the  difficulty  in  learning  what  use  the  brick  were  to  be  put  to 
upon  reaching  their  destination,  we  cannot  regard  a  classifica- 
tion as  scientific,  or  a  difference  in  rates  as  well  based,  which 
is  altogether  founded  upon  a  distinction  that  has  no  transporta- 
tion significance. 

"Moreover,  such  a  dift'erentiation,  if  permitted  and  extended 
throughout  the  various  classes  of  freight  handled  by  railroads, 
would  lead  to  an  almost  endless  multiplication  of  rates,  which 
could  find  no  excuse  save  in  the  use  which  might  be  made  of  the 
article  transported.  One  class  of  lumber  of  the  same  measure- 
ment and  of  the  same  value  and  of  the  same  general  appearance 
and  of  the  same  weight  as  another  might  be  given  a  distinct  and 
separate  rate.  And  so  with  building  stone  and  cement  and 
steel  in  certain  forms,  and  many  other  commodities  which  will 
readily  suggest  themselves.  Classification  must  be  based  upon 
a  real  distinction  from  a  transportation  standpoint ;  and  we  can 
find  no  such  distinction  between  these  three  classes  of  brick,  which 
are  made  of  the  same  material  and  come  out  of  the  same  kiln, 
as  justifies  a  difference  in  rates.  To  hold  otherwise  would  be 
to  promote  false  billing  on  the  part  of  shippers,  and  to  require 
the  carriers,  if  they  would  avoid  the  penalty  of  the  law,  to  make 
a  practically  impossible  examination  into  the  use  to  which  each 
shipment  of  these  brick  was  put." 

The  subject  is  extensively  discussed  in  Re  Restricted  Rates, -^^ 
and  the  conclusion  stated  "that  the  carrier  has  no  right  to  at- 
tempt to  dictate  the  uses  to  which  commodities  transported  by 
it  shall  be  put  in  order  to  enjoy  a  transportation  rate."  In  the 
course  of  the  opinion  Conference  Ruling  34  was  quoted  as  fol- 
lows : 

"A  tariff  providing  for  reduced  rates  on  coal  used  for  steam 
purposes,  or  that  the  carrier  will  refund  part  of  the  regular 
tariff'  charges  on  presentation  of  evidence  that  the  coal  was  so 


^^Re  Restricted  Rates,  20  I.  C.  of  Union  Made  Garments  Mfrs. 
C.  426.  See  also  Carter  White  of  America  v.  Chicago  &  X.  W. 
Lead  Co.  v.  Norfolk  &  W.  Ry.  R.  Co.,  16  I.  C.  C.  405;  Whit- 
Co.,  21  I.  C.  C.  41;  Ohio  Allied  comb  v.  Chicago  &  N.  W.  Ry. 
Milk  Product  Shippers  v.  Erie  Co.,  15  I.  C.  C.  27;  Northbound 
R.  Co.,  21  I.  C.  C.  522,  527;  Re  Rates  on  Hardwood,  32  I.  C.  C. 
Rates  on  R.  R.  Fuel  &  Other  521. 
Coal,   36   I.   C.   C.   1.     Association 


§  90.]  Must  Be  Re:asonable.  163 

used,  is  improper  and  unlawful — that  is  to  say,  that  the  carrier 
has  no  right  to  attempt  to  dictate  the  uses  to  which  commod- 
ities transported  by  it  shall  be  put  in  order  to  enjoy  a  trans- 
portation rate." 

§  90.  Value  of  the  Commodity,  Its  General  Utility  and 
Danger  of  Loss. — The  commission  in  the  Tift  and  Central 
Yellow  Pine  cases, ^■^  as  reasons  for  its  conclusion  that  the  rates 
there  under  investigation  were  illegal  and  unreasonable,  said, 
"Lumber  is  an  inexpensive  freight.  *  *  '^  It  is  not  what  is 
known  as  perishable  traffic,  *  *  *  and  in  case  of  accident,  the 
damage  is  insignificant.  *  *  *  Lumber  is  moreover  an  article 
of  general  utility."  Each  of  these  cases  received  the  approval  of 
the  Supreme  Court. •''■"^  The  element  of  value  of  the  commodity 
transported  forms  a  proper  consideration  to  be  taken  into  ac- 
count in  the  establishment  of  a  rate.  The  liability  of  a  carrier  as 
an  insurer  of  freight  against  all  loss,  e>xept  such  as  is  occasioned 
by  the  act  of  God  or  the  public  enemy  is  elementary,  and  the 
greater  the  value  the  greater  the  risk.'''^  In  the  Food  Products 
case,^'^  it  was  stated:  "W  bile  rates  should  not  be  so  low  as  to  im- 
pose a  burden  on  other  traffic,  they  should  have  reasonable  relation 
to  the  cost  of  production,  and  the  value  of  the  transportation 
service  to  the  producer  and  shipper.  In  the  carriage  of  the 
great  staples  which  supply  an  enormous  business,  and  which  in 
market  value  and  actual  cost  of  transportation,  are  among  the 
cheapest  articles  of  commerce,  rates  yielding  moderate  profit 
are  both  justifiable  and  necessary." 

"It  is  axiomatic  that  rates  depend  largely  upon  value,"  ^^^  and 


''Tift  V.   So.    Ry.    Co..   10   I.    C.  Com.  Com.  v.  Chicago  Great  W. 

C.     548;      Central     Yellow      Pine  Ry.   Co.,   141   Fed.   1003,   1015,  and 

Asso.   V.   111.    Cent.    R.    Co.,    10   I.  citations. 

C.  C.  505.  "  Re    Alleged    Excessive    Rates 

"So.  Ry.  Co.  V.  Tift,   148   Fed.  on    Food    Products,    4    I.    C.   C. 

1021,    206    U.    S.    428,    51     L.    Ed.  IIG.  3    I.   C.   R.   93,   104.      See   also 

1124,   27    Sup.    Ct.    709;    111.    Cent.  Mayor,  etc.,  of  Wichita  v.  Atchi- 

R.   Co.  V.  Int.   Com.  Com.,  20f)  U.  son,    T.    &    S.    F.    Ry.,    9    I.    C.    C. 

S.  441,  51  L.  Ed.  1128,  27  Sup.  Ct.  534,    548;    Farmers',    etc..    Club    v. 

700.  A.   T.    &    S.    F.    Ry.    Co.,    12    I.    C. 

'"  Notes    37    and    46    supra,    this  C.  351,  360. 

chapter.     Howell  v.  New  York,  L.  ''  Re    Reduced     Rates    on     Re- 

E.  &  W.  Ry.  Co.,  2  I.  C.  C.  272,  1  I.  turned     Shipments,     19     I.     C.     C. 

C.     R.     162,     172.      See     also     Int.  409,    418. 


164  Charges  by  Common  Carriers  [§  91. 

"value  has  long  been  one  of  the  established  measures  of  a  rate,"^^ 
but  value  and  not  use  is  one  of  the  determining  factors  in  classifi- 
cation/**^ That  value  should  be  considered  in  rate-making  has 
been  recognized  by  the  Supreme  Court. ^^ 

The  correctness  of  the  rule,  that  value  should  be  considered 
in  making  rates,  and  the  difficulty  of  applying  the  rule,  is  force- 
fully stated  by  the  Commission  in  the  Overall  case  ^-  where, 
although  recognizing  that  equitably  these  cheap  cotton  gar- 
ments were  entitled  to  a  classification  different  from  the  more 
valuable  woolen  clothing,  relief  was  denied. 

When  increased  value  of  a  commodity  increases  the  hazard,, 
the  cost  of  service  from  loss  and  damage  may  be  increased  and 
that  fact  might  justify  an  increased  rate.'^^  Iron  should  not 
bear  a  rate  equal  to  the  average  of  all  rates. ^^  Coal  ^^  and  salt  ^^ 
are  articles  of  low  grade  traffic  and  entitled  to  relatively  low 
rates. 

§  91.  Value  of  the  Commodity — Difference  between  the 
Raw  and  the  Manufactured  Product. — The  more  valuable 
the  commodity  shipped  the  greater  the  loss  to  the  carrier  should 
the  commodity  be  damaged  or  destroyed  while  in  course  of  trans- 
portation. This  and  the  rule  just  discussed  relating  to  the  value 
of  the  commodity  justifies  the  general  rule  that  the  manufac- 
tured product  should  take  a  higher  rate  than  the  raw  product 
from  which  the  finished  product  is  made. 

'^'''  Fels    &    Co.    V.    Pennsj'lvania  Garment     Mnfrs.    of    America  v. 

R.   Co.,   25   I.   C.   C.   154,   158,   and  Chicago   &   X.  W.   Ry.   Co..   16   I. 

Note  46  supra   this   chapter.  C.  C.  405.     See  also  Caldwell  Co.  v. 

'"Re    Suspension    of     Western  Chicago,    I.    &   L.    Ry.    Co..   20   I. 

Classification  No.   51,  25   I.   C.   C.  C.    C.    412. 

442,    499.      See    also    Union    Tan-  ''""'  Kindel  v.  Adams  Express  Co., 

ning  Co.  v.  Southern  Ry.   Co.,  26  13  I.   C.   C.  475.  485. 

I.   C.   C.   159,   163.  "Colorado  Fuel  &  Iron   Co.  v. 

''  Kansas  City  Southern  Ry.  Co.  So.   Pac.   Co..   6   I.   C.   C.  488.   515. 

V.  Carl,  227  U.  S.  639,  650.  653,  57  "'  Denison   Light    &   Power   Co. 

L.  Ed.  683,  33  Sup.  Ct.  391,  citing  v.   Missouri,  K.  &  T.  Ry.   Co..   10 

Re  Released  Rates,  13  I.  C.  C.  550;  T.  C.  C.  337;  Sligo  Iron  Stove  Co.  t--. 

Southern  Oil  Co.  v.  Southern  Ry.  Atchison,  T.  &  S.  F.  Ry.  Co..  17 

Co.,  19  I.  C.  C.  79;  Miller  v.  South-  I.  C.  C.  139;  Sligo  Iron  Stove  Co. 

ern  Pac.  Co..  20  I.  C.  C.  129:  North-  z:  Union  Pac.  R.  Co..  19  I.  C.   C. 

ern  Pac.  R.  Co.  z:  North  Dakota.  527. 

236   U.    S.   585,    59    L.    Ed.   — .    35  ""  Anthony  Salt  Co.  v.  Mo.  Pac. 

Sup.    Ct.    429.  Ry.    Co.,   5   I.   C.   C.  299,   515,  4   I. 

""Association    of    Union     Alade  C.    R.   33. 


§  92.]  AIusT  Be  Reasonable.  165 

This  general  rule,  the  Commission  has  held,  is  founded  in 
reason  "because  ordinarily  there  is  a  substantial  difference  be- 
tween the  value  of  the  one  and  of  the  other,  and  frequently  there 
is  a  greater  degree  of  risk  incident  to  the  transportation  and  care 
of  the  manufactured  product  than  of  the  raw  material."  ^' 

While  this  general  principle  has  been  frequently  applied,*^^  the 
rule  has  its  exceptions.  Between  the  rates  on  live  stock  and 
the  rates  on  the  products  of  live  stock  there  is  no  uniform  rela- 
tion. In  some  territory  the  manufactured  product 
takes  the  higher  rate,  in  other  sections  live  stock  and 
packing  house  products  take  the  same  rates.^^  So  with  grain 
and  grain  products."'' 

§  92.  Competition  or  Its  Absence  Considered  in  Deter- 
mining Reasonableness  of  Rate. — In  the  Central  Yellow  Pine 
and  the  Tift  cases,' ^  the  commission  had  under  consideration  a 
rate  fixed  by  the  concerted  and  concurrent  action  of  the  carriers 
and  there  said : 

"We  deem  it  unnecessary  to  express  an  opinion  as  to  whether 
this  concert  of  action  in  fixing  the  advanced  rate  amounts  to  an 
unlawful  agreement  under  the  so-called  "Anti-Trust  Act" — the 
enforcement  of  that  act  being  a  matter  properly  cognizable  by 

"'East    St.     Louis     Cotto:-i    Oil  I.  C.  C.  160:   Sinclair  v.  C.  M.  & 

Co.  V.  St.  Louis  &  S.  F.  Ry.  Co.,  St.    P.    R.    Co.,    21    I.    C.    C.    490, 

20  L   C.   C.  37.  506;      Western      Rate      Advance 

•^Bulte  Milling  Co.  v.   Chicago  Case,  1915,  35  L  C.  C.  497. 
&  A.  R.  Co.,  15  L  C.  C.  351,  364;  '"Mayor,  etc.,  of  Wichita  v.  A. 

Massee  &  Felton  Lumber  Co.  v.  T.  &  S.  F.  R.  Co.,  9  I.  C.  C.  534; 

Southern  Ry.  Co.,  23  L  C.  C.  110;  Farmers,    Merchants    &    Shippers 

Association  of  Union  Made  Gar-  Club  v.  A.  T.  &  S.  F.  R.  Co.,  12 

ment   Mnfrs.   of  America  v.   Chi-  L    C.    C.   351;    Howard    Mills    Co. 

cago  &  N.  W.   Ry.  Co.,   16  L   C.  v.  M.  P.  Ry.  Co.,  12  I.  C.  C.  258; 

C.   405;   American   Milling  Co.  v.  Investigation      of     Advances      in 

Pierre  Marquette  R.   Co.,  Unrep.  Rates    on    Grain,   21    L    C.    C.   22, 

Op.  328.  32;        Kansas-California        Flour 

"'Chicago    Board    of    Trade    v.  Rates,   29    L    C.    C.   459,   32    L    C. 

C.   &  A.  R.   Co.,  4   I.    C.    C.    158;  R.  602;  Wheat  Rates  from  Okla- 

Squire  &  Co.  v.  M.   C.   R.   Co.,  4  homa,    30    I.    C.    C.    93;    Western 

L  C.  C.  611;  Chicago  Live  Stock  Advance  -Rate    Case    1915,    35    L 

Exchange  v.  C.  G.  &  W.  R.  Co..  C.  C.  497. 

10   I.   C.   C.  429;    Int.   Com.    Com.  ''Central  Yellow   Pine  Asso.  v. 

V.   C.   G.   &  W.   R.   Co.,   141   Fed.  I.  C.  C.  Co..  10  I.  C.  C.  505;  Tift 

1003;      Investigation    of     Alleged  r.  So.   Ry.   Co.,   10   I.   C.  C.  548. 
Unreasonable   Rates  on   Meat,  20 


166  Charges  by  Common  Carriers  [§  92. 

the  courts.  It  is  clearly,  however,  within  the  scope  of  our  au- 
thority and  duty  to  consider  this  joint  or  concerted  action  of  the 
defendants  in  the  aspect  of  its  bearing  upon  the  reasonableness 
and  validity  of  the  advanced  rate,  the  result  of  that  action. 
\\"here  rates  are  established  by  concert  of  action  and  previous  un- 
derstanding between  the  carriers,  it  is  manifest,  whether  or  not 
there  be  a  binding  agreement  to  maintain  such  rates,  that  the  ele- 
ment of  competition  is  eliminated.  Concert  of  action  is  wholly  in- 
consistent with  competition  and,  during  the  time  the  rates  fixed  by 
concert  of  action  are  maintained,  the  effect,  so  far  as  competition 
is  concerned,  is  the  same  as  if  there  was  a  binding  agreement  to 
maintain  such  rates. 

"Competition  is  favored  by  law.  The  object  of  the  pooling 
section  (§  5)  of  the  Interstate  Commerce  Act  is  to  prevent  'any 
contract,  agreement,  or  combination'  between  otherwise  compet- 
ing carriers  by  which  competition  between  them  may  be  done 
away  with.  In  East  Tenn.,  \'a.  &  Ga.  Railway  Co.  v.  Interstate 
Commerce  Commission  it  is  said,  the  Interstate  Commerce 
Law,  it  is  conceded,  was  intended  to  encourage  normal  compe- 
tition. It  forbids  pooling  for  the  very  purpose  of  allowing  com- 
petition to  have  effect.  (99  Fed.  Rep.  61.)  The  Supreme  Court 
holds  that  the  suppression  of  competition  is  violative  of  the  so- 
called  "Anti-Trust  Act."  in  that,  such  suppression  restrains  trade 
and  commerce  by  "keeping  rates  and  charges  higher  than  they 
might  otherwise  be  under  the  laws  of  competition."  (Joint  Traf- 
fic Association  Case,  171  U.  S.  505,  569.  571,  577,  43  L.  Ed.  259, 
287,  288,  290,  19  Sup.  Ct.  Rep.  25;  1  Fed.  Anti-Trust  Dec. 
869;  U.  S.  c'.  Trans-Missouri  Freight  Association,  166  U.  S. 
341.  41  L.  Ed.  1027.  17  Sup.  Ct.  Rep.  540. 

The  ground  upon  which  competition  is  favored  is  that  it  con- 
duces to  the  reasonableness  of  rates  or  to  the  protection  of  the 
public  from  unreasonably  high  or  excessive  rates.  In  United 
States  V.  Freight  Association,  supra,  the  Supreme  Court  says, 
'■-competition  will  itself  bring  charges  down  to  what  may  be  rea- 
sonable. (166  U.  S.  339.  41  L.  Ed.  1027,  17  Sup.  Ct.  Rep. 
540).  .The  act  to  regulate  commerce  {§  1),  in  prohibiting  un- 
reasonableness of  rates,  in  eft"ect  forbids  whatever  conduces  to 
such  unreasonableness.  In  any  event,  it  is  incumbent  upon  the 
commission,  when  the  reasonableness  of  rates  is  in  issue  before 
it,   to   consider   how   those   rates   were   brought   about — whether 


§  93.]  Must  Be  Reasonable.  167 

they  are  the  product  of  untrammeled  competition  or  the  result  of 
a  concert  of  action  or  combination  between  the  carriers  estabhsh- 
ing  and  maintaining  them.  The  advanced  rates  complained  of 
cannot  be  claimed  to  be  the  outcome  of  competition  because  the 
natural,  direct  and  immediate  effect  of  competition  is  to  lower 
(United  States  z:  Joint  Traffic  Asso.,  171  U.  S.  505,  S77,  43  L. 
Ed.  529,  290,  19  Sup.  Ct.  Rep.  25),  rather  than  advance,  rates. 
The  advanced  rates  must  be  presumed  to  be  higher  than  rates 
which  unrestrained  competition  would  produce." ''- 

Mr.  Commissioner  Prouty,  in  Re  Class  and  Commodity  Rates 
from  St.  Louis  to  Texas  Common  Points,  11  C.  C.  238,  269, 
270,  discusses  this  question  as  follows : 

"The  theory  of  this  country  in  respect  to  interstate  rates  in 
the  past  has  apparently  been  that  competition  between  various 
railroads  would,  if  it  could  be  secured,  produce  reasonable  freight 
rates  in  the  same  way  that  competition  tends  to  produce  a  rea- 
sonable price  of  commodities  in  general.  This  was  the  idea 
expressed  in  the  enactment  of  the  5th  section  of  the  act  to  reg- 
ulate commerce  in  1887  which  prohibits  pooling.  It  was  also  the 
purpose  of  the  Sherman  Anti-Trust  Act  of  1890  which  forbids 
all  agreements  in  restraint  of  interstate  commerce,  and  as  in- 
terpreted by  the  Supreme  Court  of  the  United  States,  all  agree- 
ments between  carriers  as  to  the  rate  of  freight  applied  to  in- 
terstate shipments.  The  idea  has  received  the  sanction  of  ju- 
dicial interpretation  and  the  approval  of  judicial  dicta.  It  is 
impossible  to  read  the  utterances  of  the  Supreme  Court  in  the 
Trans-Missouri  case  and  the  Joint  Traffic  Association  case  with- 
out the  conviction  that  a  majority  of  that  tribunal  were  of  the 
opinion  not  only  that  competition  could  be  relied  upon  to  regulate 
freight  rates  but  that  it  was  the  safest  and  best  means  to  that  end." 

§  93.  Same  Subject. — The  principle  applied  by  the  Commis- 
sion has  received  the  approval  of  the  courts.  The  Supreme  Court 
has  said :  "The  interstate  commerce  law  was  intended  to  pro- 
mote trade."^2  And  in  Int.  Com.  Com.  v.  Chicago  G.  W.  R.  Co.''* 


"  Tift  V.   So.   Ry.    Co.,   138   Fed.       Behlmer,  175  U.  S.  048.  44  L.  Ed. 
753;  111.  Cent.  R.  Co.  v.  Int.  Com.       309,  20  Sup.   Ct.  209. 
Com.,   206   U.    S.    441.    51    L.    Ed.  "  Int.    Com.    Com.    r.    Chicago 

1128,   27    Sup.    Ct.   700.  G.  W.   R.   Co..  209  U.   S.   108,   119, 

"Louisville     &     N.     R.     Co.     v.       120,    52    L.    Ed.    705,    712,    713,    28 

Sup.    Ct.    493. 


168  ,      Charges  by  Common  Carriers  [§  93. 

'"It  innst  be  remembered  that  railroads  are  the  private  prop- 
erty of  their  owners;  that  while,  from  the  public  character  of 
the  work  in  which  they  are  engaged,  the  public  has  the  power  to 
prescribe  rules  for  securing  faithful  and  efficient  service  and 
equality  between  shippers  and  communities,  yet,  in  no  proper 
sense,  is  the  public  a  general  manager.  As  said  in  Interstate 
Commerce  Commission  v.  Alabama  ^Midland  R.  Co.,  168  U.  S. 
144,  172.  42  L.  Ed.  414,  425,  18  Sup.  Ct.  Rep.  45,  51,  quoting 
from  the  opinion  in  Circuit  Court  of  Appeals  same  style  case, 
5  Inters.  Com.  Rep.  697,  21  C.  C.  A.  59,  41  U.  S.  App.  466,  74 
Fed.  723 : 

"  'Subject  to  the  two  leading  prohibitions  that  their  charges 
shall  not  be  unjust  or  unreasonable,  and  that  they  shall  not  un- 
justly discriminate  so  as  to  give  undue  preference  or  disadvan- 
tage to  persons  or  traffic  similarly  circumstanced,  the  act  to 
regulate  commerce  leaves  common  carriers  as  they  were  at  the 
common  law, — free  to  make  special  rates  looking  to  the  increase 
of  their  business,  to  classify  their  traffic,  to  adjust  and  apportion 
their  rates  so  as  to  meet  the  necessities  of  commerce  and  of  their 
own  situation  and  relation  to  it,  and  generally  to  manage  their 
important  interests  upon  the  same  principles  which  are  regarded 
as  sound  and  adopted  in  other  trades  and  pursuits.' 

"It  follows  that  railroad  companies  may  contract  with  shippers 
for  a  single  transportation  or  for  successive  transportations, 
subject  though  it  may  be  to  a  change  of  rates  in  the  manner  pro- 
vided in  the  interstate  commerce  act  (Armour  Packing  Co.  v. 
United  States,  209  U.  S.  56,  52  L.  Ed.  681,  28  Sup.  Ct.  Rep.  428), 
and  also  that,  in  fixing  their  own  rates,  they  may  take  into  ac- 
count competition  with  other  carriers,  provided  only  that  the 
competition  is  genuine,  and  not  a  pretense  (Interstate  Commerce 
Commission  v.  Baltimore  &  O.  R.  Co.,  145  U.  S.  263,  36  L.  Ed. 
699,  4  Inters.  Com.  Rep.  92,  12  Sup.  Ct.  Rep.  844 :  Texas  &  P. 
R.  Co.  r.  Interstate  Commerce  Commission.  162  U.  S.  197,  40 
L.  Ed.  940,  5  Inters.  Com.  Rep.  405,  16  Sup.  Ct.  Rep.  666;  In- 
terstate Commerce  Commission  v.  Alabama  Midland  R.  Co.  supra; 
Louisville  &  X.  R.  Co.  v.  Behlmer,  175  U.  S.  648.  44  L.  Ed.  309, 
20  Sup.  Ct.  Rep.  209;  East  Tenn.,  A'.  &  G.  R.  Co.  v.  Interstate 
Commerce  Commission,  181  U.  S.  1.  45  L.  Ed.  719,  21  Sup.  Ct. 
Rep.  516:  Interstate  Commerce  Commission  z'.  Louisville  &  N. 
R.  Co.,  190  U.  S.  273,  47  L.  Ed.  1047.  23  Sup.  Ct.  Rep.  687). 


§  93.]  Must  Be  Reasonable.  169 

"It  must  also  be  remembered  that  there  is  no  presumption  of 
wrong  arising  from  a  change  of  rate  by  a  carrier.  The  pre- 
sumption of  honest  intent  and  right  conduct  attends  the  action 
of  carriers  as  well  as  it  does  the  action  of  other  corporations  or 
individuals  in  their  transactions  in  life.  Undoubtedly,  when 
rates  are  changed,  the  carrier  making  the  change  must,  when 
properly  called  upon,  be  able  to  give  a  good  reason  therefor ; 
but  the  mere  fact  that  a  rate  has  been  raised  carries  with  it  no 
presumption  that  it  was  not  rightfully  done.  Those  presumptions 
of  good  faith  and  integrity  which  have  been  recognized  for  ages 
as  attending  human  action  have  not  been  overthrown  by  any 
legislation  in  respect  to  common  carriers." 

It  is  evident  "that  there  is  no  presumption  of  wrong"  when 
a  carrier  "takes  into  account  competition  with  other  carriers" 
and  without  an  illegal  combination  betw^een  it  and  other  carriers 
makes  an  advance  in  its  rates,  for  as  said  by  the  court  in  the 
course  of  the  same  opinion,  "Competition  eliminates  from  the 
case  an  intent  to  do  an  unlawful  act."  But  when  an  advance  is 
made  as  a  result  of  a  combination  that  is  illegal,  there  can  be 
no  presumption  that  the  act  of  making  the  advance  was  in  good 
faith  and  the  carrier  should  not  only  show  "a  good  reason  there- 
for," but  the  rate  so  advanced  is  presumptively  illegal,  and  the 
carrier  should  be  required  clearly  to  show  that  it  is  not  unrea- 
sonable. Judge  Speer,  with  that  ability  and  clearness  that  usually 
mark  his  opinions,  in  the  case  of  Tift  v.  So.  Ry.  Co..  supra,  states 
the  rule  correctly  and  at  length. '^•'^ 

It. is  true  that  the  commission  has  no  authority  to  enforce  the 
Sherman  Anti-Trust  Law  and  cannot  penalize  carriers  who  may 
violate  it,  but  the  commission  can  and  should,  when  considering 
the  difificult  question  of  what  is  a  reasonable  rate,  look  to  the 
causes  that  produced  the  rate  and  the  method  adopted  in  putting 
it  into  eiTect.  Congress  has  been  repeatedly  importuned  to  permit 
interstate  carriers  to  combine,  and  has  so  far  refused  to  amend 
the  Sherman  Anti-Trust  Law  in  that  respect.  That  the  law  ap- 
plies to  carriers,  and  that  any  contract  or  combination  in  restraint 
of  trade  between  the  states  violates  the  act  has  been  definitely 
settled  in  the  Trans-]\Iissouri  Freight  and  Joint  Traffic  Associa- 

"Tift  z.'.   So.    Ry.    Co.,   138   Fed.        20r,  U.   S.   428,   51   L.   Ed.   1124,   27 
753,    761,    762,    763.      Affirmed,    So.        Sup.    Ct.    709. 
Ry.    Co.    V.    Tift,    14S    Fed.    1021, 


170  Charges  by  Common  Carriers  [§  94. 

tion  Cases  cited  supra  section  92.  It  is  probably  true 
that  freight  associations  are  necessary  to  the  proper 
conduct  of  the  great  business  of  carriers,  and  that  there  should 
be  some  modification  of  the  law  with  reference  to  such  associa- 
tions. Such  modifications,  if  made,  should  protect  the  interests 
of  the  public  as  well  as  that  of  the  carriers,  and  rates  made  by 
such  associations  should,  in  some  manner,  be  investigated  and 
found  reasonable  before  becoming  effective.  Of  course,  if  a 
rate  is  reasonable,  although  made  as  the  result  of  concert  of  ac- 
tion, it  cannot,  for  that  reason  alone,  be  condemned  by  the  com- 
mission.'"'^ 

§  94.  Same  Subject— Rule  Since  1910. — The  Amendment 
of  1910  provides :  "At  any  hearing  involving  a  rate  increased 
after  January  1,  1910,  or  of  a  rate  sought  to  be  increased  after 
the  passage  of  this  Act,  the  burden  of  proof  to  show  that  the 
increased  rate  is  just  and  reasonable  shall  be  upon  the  common 
carrier." '"  The  Tift  case  was  decided  before  this  provision 
was  adopted,  and  at  a  time  when  the  burden  of  proof  was  on 
him  who  attacked  a  particular  rate.  The  rule  applied  where  rates 
were  advanced  as  the  result  of  concerted  action  was  a  rule  of 
evidence  the  principal  effect  of  which  was  to  shift  the  burden  of 
proof.  Such  rule  in  so  far  as  that  eft'ect  is  concerned  has  now  no 
application,  as  the  statute  has  itself  placed  the  burden  on  the  car- 
rier increasing  the  rate.  Since  1910  the  Commission  gives  less 
weight  to  the  fact  of  concerted  action,  both  because  of  the  effect 
of  the  statute  and  because  as  a  practical  matter  carriers  can  ad- 
vance few  rates  except  by  unanimous  consent.  However,  aipong 
the  multitudinous  facts  which  must  be  considered  by  the  Commis- 
sion and  to  which  it  must  apply  the  "flexible  limit"  of  judgment, 
tliis  is  a  relevant  although  not  a  very  important  one. 

§  95.  Same  Subject — Conclusion. — Competition  never  raises 
rates,  and,  therefore,  the  eft'ect  of  competition  on  the  question 
of  what  is  a  reasonable  rate  has  not  frequently  been  considered. 

'''  China    &    Japan    Trading    Co.  dulged    any    presumption    against 

V.    Ga.    R.    Co.,    12    I.    C.    C.    231),  a  rate  established  in  consequence 

241,    and   cases   there    cited.      En-  of    an    agreement    between    carri- 

terprise   Mfg.   Co.  v.   Ga.   R.   Co.,  ers.      R.    R.    Com.    of    Texas    v. 

2    I.    C.    C.    451,    456;    Board    of  Atchison,  T.  &  S.  F.  Ry.  Co.,  20 

Bristol,    Tenn.    v.    Virginia    &    S.  I.    C.    C.    463,    466. 
W.    Ry.     Co.,     15     I.     C.    C.    453.  "  See    Sees.    399    and    505,    f^ost. 

The  Commission  has  not  alwavs  in- 


§  95.]  Must  Be  Reasonable.  171 

The  effect  of  competitioh  is  important,  as  will  be  seen  in  chapter 
four  post  when  the  commission  or  the  courts  are  called  upon  to 
determine  whether  or  not  a  particular  rate  is  discriminatory.  In 
making  comparisons  a  rate  created  by  competition  may  be  con- 
sidered reasonably  low,  and  frequently  the  commission  has  re- 
fused to  reduce  a  noncompetitive  rate  to  a  mileage  basis  equal  to 
that  of  a  competitive  one.  This  is  just  to  the  carriers  because 
competition,  especially  water  or  market  competition,  will  force  a 
carrier  to  transport  to  a  particular  point  at  a  very  small  margin 
of  profit.  The  carrier  is  permitted  to  meet  competition,  provided 
that  in  doing  so,  it  does  not  transport  at  a  loss.  Market  competi- 
tion frecjuently  may  require  a  carrier  to  transport  goods  a  long 
distance.at  a  comparatively  low  rate.  So  long  as  any  profit  is 
made  by  such  transportation,  it  benefits  not  only  the  carrier  but 
all  shippers  that  such  transportation  should  be  accepted.  But  it 
would  be  unjust  to  the  carrier  to  make  this  kind  of  traffic  a  basis 
for  all  rates.  Kirkman,  speaking  of  this  kind  of  competition, 
says : "^ 

"Competition  is  a  potent  factor  in  determining  rates,  and  is 
general  in  the  case  of  railroads.  Thus  the  facility  and  cheap- 
ness with  which  wheat  may  be  moved  from  India  to  Liverpool 
affect  the  rate  on  wheat  in  every  cjuarter  of  the  globe.  They  also 
affect  the  rates  on  substitutes  therefor,  such  as  rye,  barley,  and 
so  on.  In  so  far  as  this  is  so,  it  is  apparent  that  competition  is 
only  partially  dependent  upon  the  presence,  of  neighboring  lines 
or  other  local  influences.  Local  competition,  while  valuable,  is 
not  enough  to  enforce  equitable  conditions.  It  must  be  supple- 
mented by  the  competitive  markets  of  the  world,  including  the 
diversified  carriage  of  mankind  by  land  and  water.  Richness 
of  soil,  facilities  of  production,  the  price  of  labor  and  rates  of 
local  carriers  from  points  of  production  to  places  of  general 
consumption  influence  the  charges  of  other  carriers  in  every  quar- 
ter of  the  globe.  It  is  no  exaggeration  to  say  that  sources  of 
competition  among  carriers  are  as  numerous  as  the  divergent 
interests  of  trade.  Because  of  this  they  are  self-regulative.  Their 
errors  of  judgment  and  sins  of  omission  and  commission  are 
self-corrective." 

This  quotation  would  not  be  accurate  if  applied  to  competi- 

'"  Science    of    Railways,    vol.    8,    pp.    8    and    9. 


172  Charges  by  Common  Carriers  [§  95. 

tion  generally ;  it  does  correctly  describe  market  competition. 
Water  competition,  where  it  exists,  affects  rates  in  a  similar  way 
to  that  of  market  competition.  The  carriers  have  suppressed 
water  competition  in  some  cases  and  use  it  in  others  to  defend 
some  particular  practice.  This  competition  is  discussed  by  Mr. 
Commissioner  Prouty  as  follows  :  ''^ 

"Without  doubt  water  competition  is  made  to  do  most  heroic 
service  in  many  portions  of  the  United  States  in  justifying" 
anomalies  in  the  freight  rate,  but  we  are  constrained  to  believe 
that  this  competition  between  the  Atlantic  and  Pacific  Oceans 
is  not  a  thing  of  the  imagination,  but  rather  of  intense  reality 
with  which  these  rail  carriers  must  deal. 

"\A'hen  the  rail  lines  first  reached  the  Pacific  Coast 'all  mer- 
chandise was  brought  in  by  water;  at  the  end  of  several  years 
the  greater  portion  of  it  still  came  by  that  means.  While  both 
the  tonnage  and  the  proportion  have  been  largely  reduced  since, 
there  has  been  no  time  when  the  ocean  was  not  an  important 
factor  in  determining  the  rate  from  New  York  to  San  Francisco. 
Xothing  gives  stronger  evidence  of  the  present  vitality  of  that 
competition  than  the  fact  that  men  familiar  with  the  situation 
have  been  to  an  enormous  expense  in  providing  tonnage  for  this 
service  which  is  more  than  three  times  the  amount  carried  in 
recent  years.  From  the  day  the  transcontinental  railroad 
touched  the  Pacific  Ocean  its  struggle  has  been  to  divert  busi- 
ness from  sail  to  rail ;  and  with  steamships  already  in  service 
and  the  canal  in  immediate  prospect  it  is  certain  that  this  strug- 
gle has  not  ended. 

"In  1869,  when  the  Central  Pacific  and  Union  Pacific  began 
business,  goods  used  in  California  were  mainly  manufactured 
upon  the  Atlantic  seaboard.     In  order  to  secure  the  transporta- 

''  Business  Men's  League  of  St.  Commerce  of  Newport  News  v. 
Louis  V.  Atchison,  T.  &  S.  F.  Southern  Ry.  Co.,  23  L  C.  C. 
Ry.  Co..  9  I.  C.  C.  318.  359.  360.  345.  But  a  competing  water 
Low  rate  induced  by  water  com-  route  will  not  justify  unreason- 
petition,  Re  Advances  in  Rates  able  rates,  Southern  Pac.  Co.  v. 
for  the  Transportation  of  Flax-  Interstate  Com.  Com.,  219  U.  S. 
seed,  23  I.  C.  C.  272.  275.  Water  433.  55  L.  Ed.  283,  31  Sup.  Ct. 
competition  creating  dissimilar  288.  See  amendment  as  to  water 
conditions,  Georgetown  Ry.  &  competition  suppressed  by  rail 
Light  Co.  V.  Norfolk  &  W.  R.  carriers.  Sec.  351,  post. 
Co.,  2   I.   C.   C.   144:    Chamber  of 


I 


§  96.]  Must  Be  Reasonable.  173 

tion  of  these  goods  the  rail  Hnes  found  it  necessary  to  make  a 
rate,  not  as  low  in  cents  per  hundred  pounds,  but  of  as  great 
value,  all  things  considered,  as  the  water  rate.  Most  rates  be- 
tween New  York  and  San  Francisco  have  ever  since  been  and 
still  are  established  on  this  basis.  It  is  idle  to'  say  that  when 
wrought  iron  pipe,  for  instance,  can  be  transported  from  coast 
to  coast  by  water  for  35  cents  per  hundred  pounds,  rail  carriers 
can  maintain  a  carload  rate  much  above  the  75  cents  now  in 
force." 

Rail  competition  has  practically  been  extinguished  in  so  far 
as  it  affects  rates. ^*^     There  is  a  carrier  competition  in  service. 

This  competition  Kirkman  describes  as  follows :  ^^  "Competi- 
tion between  local  carriers  is  beneficial  in  many  ways  aside  from 
its  effect  and  uses.  It  insures  better  facilities,  superior  ware- 
houses, yards  and  grounds,  adequate  equipment  and  suitable  pro- 
vision for  the  convenience,  safety  and  comfort  of  the  traveling 
public." 

§  96.  Rates  Affected  by  Amount  of  Tonnage. — The  com- 
mission has  said:  "The  business  of  the  defendants  (the  carriers), 
not  only  in  lumber,  but  in  traffic  in  general,  has  grown  and  is 
growing  largely,  and  in  view  of  the  fact  that  they  derive  their 
fi^anchises,  or  right  to  exist,  from  the  public,  the  lumber  ship- 
pers as  part  of  the  public  might  plausibly,  to  say  the  least,  claim 
that  they  have  a  right  to  participate  in  the  prosperity  of  the  de- 
fendants by  having  their  rates  reduced  rather  than  advanced.  The 
general  rule  is,  the  greater  the  tonnage  of  an  article  transported, 
the  lower  should  be  the  rate.  No  rulq  is  more  firmly  grounded  in 
reason  or  more  universally  recognized  by  carriers.  It  is  because 
of  the  greater  density  of  traffic  north  of  the  Ohio  River  in  Cen- 
tral Freight  Association  territory  and  in  the  eastern  territory  that 
rates  in  general  are  made  materially  lower  in  those  territories 
than  in  the  southern  territory.^^  This  principle  was  restated 
by  Mr.  Commissioner  Clements,  in  Farrar  v.  So.  Ry.  Co.,  11  I. 
C.  C.  632,  637,  where  he  says : 

"In  regions  of  lumber  supply  the  amount  of  this  class  of 
freight   offered    for  transportation   is   very  large   and   the   ship- 

'"Tift  V.  Southern  Ry.  Co.,  138  ''Tift   v.    Southern    Ry.   Co.,    10 

Fed.    753.  I.   C.    C.    548,   583. 

"  Science    of    Railways,    vol.    8, 
pp.    10,   11. 


174  Charges  by  Common  Carriers  [§  96. 

meats  continuous  and  regular.  The  tonnage  is  of  vast  impor- 
tance to  the  carriers,  attording  them  a  principal  source  of  reve- 
nue. The  immense  volume  alone  of  traffic  is  an  argument  for 
not  only  reasonable  but  comparatively  low  rates,  and  these  in 
turn  are  necessary  to  the  exploitation  of  the  lumber  industry 
in  new  fields  that  partake  of  the  character  of  pioneer  develop- 
ment." 

In  a  later  case  Mr.  Commissioner  Prouty,  said :  -" 
"It  is  well  understood  that  freight  rates  should  decline  as  a 
country  develops  and  as  business  therefore  increases.  Rates 
are  and  have  been  lower  in  the  very  densely  populated  portions 
of  our  country  than  in  those  parts  where  population  is  less 
dense :  and  this  is  because  with  the  increase  of  traffic  comes  in- 
creased profit  from  the  handling  of  that  traffic.  Now  there  is 
no  portion  of  the  United  States  which  in  the  last  fifteen  years 
has  increased  to  a  more  marked  degree  in  population,  there  are 
few  sections  of  our  country  in  which  greater  development  has 
occurred  than  here.  \\'ithin  that  time  a  great  volume  of  export 
business  has  been  directed  over  the  lines  of  these  respondents  to 
Galveston  and  importations  have  begun  to  flow  through  that 
port.  The  increase  in  tonnage  has  been  enormous  and  we  have 
noted  the  economies  which  have  been  introduced  into  the  han- 
dling of  that  tonnage. 

"It  was  urged  that  the  improvements  required  for  these  econ- 
omies, the  reduction  of  grades,  the  laying  of  heavier  rail,  the 
purchase  of  modern  equipment,  had  necessitated  vast  outlays 
of  money  and  that  this  was  a  valid  reason  for  the  advance  in 
rates.  Undoubtedly  the  making  of  these  improvements  has  re- 
quired the  expenditure  of  large  sums :  in  many  cases  it  has 
amounted  to  a  virtual  reconstruction  of  the  railroad  and  to  a 
practical  change  of  its  equipment.  This  a'dded  expenditure 
must  be  considered  in  determining  the  reasonableness  of  these 

'^^  Re      Class      and      Commodity  Hydraulic     Press     Brick     Co.     f. 

Rates    from    St.    Louis    to    Texas  Mobile   &   O.   R.   Co.,   19   I.   C.   C. 

Common   Points,   11   I.   C.   C.  238,  530,  531;  Virginia  Carolina  Chem. 

273,  274.     For  other  cases  apply-  Co.  v.  St.   Louis.   I.   M.   &  S.  Ry. 

ing    the     principle,     see     Re     Ad-  Co.,    18    L    C.    C.    1;    Ozark    Fruit 

vances    in    Rates,    Eastern    Case,  8z    Grain    Assn.    v.    St.    L.    &    S. 

20  I.  C.  C.  243,  275;  National  Hay  F.    R.    Co.,    16   L    C.    C.    134,    139; 

and    Grain    Association   v.    Michi-  Burgess  Transcontinental  Freiglit 

gan  C.  R.  Co.,  19  L  C.  C.  34,  47;  Bureau,   13   L   C.   C.   668,   G75. 


§  97.]  Must  Be  Reasonable.  175 

rates,  but  does  not  justify  an  advance  in  rates.  What  has  been 
the  purpose  of  these  improvements?  Certainly  to  decrease  the 
cost  of  operation,  to  handle  freight  and  passengers  at  less  ex- 
pense than  they  could  be  handled  in  the  former  way.  It  is  a 
strange  logic  which  imposes  upon  the  public  a  higher  rate  while 
insuring  to  the  carrier  a  lower  cost  of  operation.  The  actual 
making  of  these  improvements  may  have  added  not  only  to  the 
expense  of  operation  but  may  have  detracted  from  the  efficiency 
of  operation.  The  prosecution  of  the  necessary  work  has  in- 
terfered with  the  movement  of  traffic  and  thereby  added  to  the 
cost  of  this  movement.  But  all  this  is  temporary  and  compar- 
atively insignificant  ajid  should  not  be  made  an  excuse  for  a 
permanent  advance  in  rates. 

'Tt  is  urged  that  the  increased  volume  of  traffic  has  necessitated 
these  outlays ;  that  otherwise  the  business  could  not  be  handled. 
And  that  is  probably  true ;  but  increase  of  traffic,  while  it  may 
produce  temporary  embarrassment,  should  reduce,  not  advance, 
rates." 

The  rule  stated  in  the  Tift  case  supra  is  too  broad.  While  in- 
creased density  of  all  traffic  afifects  rates  and  justifies  lower 
rates,  increased  density  of  a  particular  traffic  may  not  neces- 
sarily have  that  effect.  If  there  is  a  large  volume  of  a  particu- 
lar traffic  with  a  light  density  of  all  traffic,  higher  rates  may  be 
necessary  than  when  there  is  a  lesser  volume  of  the  particular 
traffic  with  a  greater  volume  of  all  traffic.  Tt  is,  however,  un- 
questionably true  that  a  large  volume  of  a  particular  traffic  is  a 
fact  which  ought  to  be  considered  in  determining  what  should 
be  the  rate  thereon. 

§  97.  Same  Subject — Further  Limitations  of  the  Rule. — 
The  rule  niay  not  be  applied  too  far.  A  traffic  official  of  one  of 
the  defendants  in  the  Morgan  Grain  case,-^  testified  that  the 
amount  of  traffic  ofl:'ered  in  1907  was  so  large  as  to  pass  the  "eco- 
nomic maximum,"  and,  therefore,  the  carriers  not  having  suffi- 
cient equipment,  the  cost  of  handling  the  traffic  was  relatively 
higher  than  if  less  traffic  had  been  ofifered.  This  may  be  true,  and 
when  true,  while  furnishing  no  reason  why  the  carrier  should 
increase  rates  based  upon  its  inability  to  meet  economically  its 
obligations  to  the  shippers,  it  would  not  be  just  to  require  the 

*' Morgan    Grain    Co.    v.    A.    C.     L.   R.   Co.,   19   I.   C.   C.  4G0. 


176  Charges  by  Common  Carriers  [§  98. 

application  of  the  rule  that  the  greater  the  traffic  the  less  rel- 
atively should  he  the  rate.  Although  if  the  condition  of  more 
traffic  than  could  be  economically  handled  should  be  a  perma- 
nent one,  it  would  be  the  duty  of  the  carrier  to  provide  adequate 
facilities  therefor.  The  effect  of  ''this  added  expenditure"  is 
discussed  in  the  quotation  supra  from  the  opinion  of  Mr.  Com- 
missioner Prouty. 

§  98.  Density  of  Traffic. — Within  reasonable  limits,  the 
greater  the  volume  of  all  traffic  the  lower  should  be  the  rates. 
This  is  obvious  and  is  the  practice  of  railroads  generally.  In 
the  densely  populated  sections  of  the  country  rates  are  on  i\ 
lower  level  than  in  the  sparsely  settled  se(;tions. 

The  statement  of  the  Commission,  speaking  through  Mr.  Com- 
missioner Prouty,  in  Re  Class  and  Commodity  Rates,  supra,  ap- 
plies here.  Rates  should  decrease  as  density  of  traffic  increases, ^^ 
and  the  fact  that  a  region  is  "comparatively  thinly  populated"  ^*^ 
may  justify  higher  rates.-" 

§  99.  Distance  and  Revenue  per  Ton  Mile. — Judge 
Cooley,  then  chairman  of  the  commission,  in  a  head  note  stated 
this  rule :  ^^  "As  a  rule  in  the  transportation  of  freight  by  rail- 
roads, while  the  aggregate  charge  is  continually  increasing  the 
further  the  freight  is  carried,  the  rate  per  ton  mile  is  constantly 
growing  less  all  the  time,  making  the  aggregate  charge  less  in 
proportion  every  hundred  miles  after  the  first,  arising  out 
of  the  character  and  nature  of  the  service  performed  and 
the  cost  of  the  ser\-ice;  and  thus  staple  commodities  and 
merchandise  are  enabled  to  bear  the  charges  of  this  mode  of 
transportation  from  and  to  the  most  distant  portions  of  the  coun- 
try." Judge  Cooley  also  pointed  out  that  this  rule  is  not  only  not 
abrogated  but  is  sanctioned  by  the  act  to  regulate  commerce.  The 
general  principle  has  been  applied  by  the  commission  in  other 


^Re  Advances  in  Rates — East-  Railroad   Com.    of  Ark.   v.   M.    & 

ern   Case— 20  I.  C.   C.  243,  275.  N.    A.    R.    Co..    30    I.    C.    C.    488; 

*"  Cherokee  Lumber   Co.  v.  At-  Railway  Com.  of  Montana  v.   B. 

lantic    C.   L.   R.    Co..   27    I.    C.    C.  A.  &  P.  Ry.  Co.,  31  I.  C.  C.  641. 

438.  648,    649. 

'•Stiritz  v.  New  Orleans,  M.   &  "*  Farrar   r.    East   Tenn..   Va.    & 

C.  R.  Co..  22  I.  C.  C.  578;  Mem-  Ga.    Ry.    Co.,    1    I.    C.    C.    480,    1 

phis    Freight    Bureau    zl    Illinois  C.   R.  764. 
Cent.  R.  Co.,  27  I.  C.  C.  507,  511; 


§  99.] 


Must  Be  RexXsonable. 


177 


cases. ^^  The  rule  is,  however,  subject  to  exceptions, ^"^  and  when 
comparing  rates,  "the  rate  per  ton  mile  is  not  always  the  measure 
of  a  reasonable  rate,  and,  rightly  applied,  would  make  distance 
alone  the  gauge  for  transportation  charges,  but  it  is  always  valu- 
able as  affording  a  basis  of  comparison  for  relative  rate  bur- 
dens.^^  Mr.  Commissioner  Prouty  says,  "The  rate  per  ton  mile, 
while  often  instructive,  is  not  by  any  means  a  fair  index  of  a 
reasonable  rate."  ^^  While  the  rate  per  ton  mile  should,  and 
usually  does,  decrease  as  distance  increases,  the  rate  per  ton  mile 
on  one  road  is  not  necessarily  a  safe  guide  in  fixing  a  rate  on 
another  road  operating  under  different  conditions. 

The  rule  that  as  the  distance  increases  the  rate  per  mile  should 
decrease,  as  has  been  so  frequently  said  of  all  formulas  of  rate- 
making,  must  be  applied  with  due  regard  to  all  the  circumstances 
and  conditions  surrounding  the  making  of  the  rate  or  rates  under 
discussion.  The  principle  is  but  a  rule  of  evidence,  a  fact  which 
may  justify  a  particular  deduction,  and  not  an  inflexible  rule  of 
law.  The  question  of  expense  incurred  in  earning  the  particu- 
lar revenue  must  not  be  lost  sight  of,^*^  and  the  formula  is  but 
one  of  many  considerations  in  rate  adjustments.^^ 

Car  mile  and  train  mile  earnings  are  frequently  used  in  com- 
paring rates  and,  as  with  the  ton  mile  comparisons,  may  consti- 
tute probative   evidence.®^ 


^  Business  Men's  Asso.  v.  Chi- 
cago, St.  P.,  M.  &  O.  R.  Co.,  2 
I.  C.  C.  52,  2  I.  C.  R.  41;  Busi- 
ness Men's  Asso.  ?'.  Chicago  & 
N.  W.  Ry.  Co.,  3  I.  C.  C.  73,  2 
I.  C.  R.  48,  52;  Gustin  v.  Atchi- 
son, T.  &  S.  F.  Ry.  Co,  8  I.  C. 
C.  277,  288.  Re  Investigation  of 
Advances  in  Rates  on  Grain,  21 
I.  C.  C.  22,  23;  National  Hay 
Assn.  V.  Michigan  C.  R.  Co.,  19 
I.  C.  C.  34,  47;  Muscogee  Traffic 
Bureau  v.  Atchison,  T.  &  S.  F. 
Ry.   Co.,   17   I.   C.   C.   1G9,    173. 

"^  Manufacturers'  and  Jobbers' 
Union  v.  Minneapolis  &  St.  L. 
Ry.  Co.,  4  I.  C.  C.  79,  3  I.  C.  R. 
115. 

"'Farrar  v.  So.  Ry.  Co.,  11  I. 
C.   C.   G40,   649. 


""  Re  Proposed  Advances  in 
Freight  Rates,  9  I.  C.  C.  383,  396; 
Butte  Milling  Co.  v.  Chicago  & 
A.  R.   Co.,  15  I.  C.  C.  351,  362. 

''  Nebraska  State  R.  Com.  v. 
Chicago,  B.  &  Q.  R.  Co.,  23  I. 
C.  C.  121,  125,  126.  In  Kansas  v. 
A.  T.  &  S.  F.  Ry.  Co.,  27  I.  C. 
C.  673,  owing  to  lighter  density 
of  traffic,  rates  for  the  longer 
distances  in  West  Kansas  were 
approved  which  yield  a  revenue 
per  net  ton  mile  higher  than  for 
the    shorter    distances. 

"*  Ashgrove  Cement  Co.  v. 
Atchison,  T.  &  S.  F.  R.  Co.,  23 
I.    C.    C.    519.    524. 

°°  Wisconsin  Steel  Co.  v.  Pitts- 
burg &  L.  E.  R.  Co.,  27  I.  C.  C. 
152,    162;    Lake    Cargo    Coal    Rate 


178  ChargiiS  by  Common  Carriers  [§  100. 

^^  hat  is  sometimes  called  the  rate  per  ton  mile,  more  properly 
the  revenue  per  ton  mile  which  the  rate  for  the  distance  yields, 
reflects  the  rate  and  the  length  of  haul  only,  and  is  obtained  by 
dividing  the  rate  per  ton  for  the  total  haul  by  the  length  of  the 
haul.  Students  of  the  principles  applied  to  rate- judging  have 
extended  the  comparisons  by  using  revenues  per  gross  ton  mile 
both  with  and  without  a  consideration  of  the  empty  haul  incident 
to  a  particular  trafflc.  The  revenue  per  net  ton  mile  gives  no 
consideration  to  the  ratio  of  revenue  paying  load  to  the  total  load 
hauled,  while  the  revenue  per  gross  ton  mile  reflects  both  the 
weight  of  the  commodity  hauled  and  the  weight  of  the  car  in 
which  it  is  hauled.  Some  commodities,  such  as  oil,  coal,  live 
stock  and  meat  products,  are  transported  in  special  equipment 
which  from  necessity  is  hauled  nearly  as  great  distances  empty 
as  loaded.  Comparisons  which  include  these  additional  con- 
siderations are  obviously  more  valuable  than  comparisons  of 
revenue  per  net  ton  mile  and  revenue  per  car  mile.  In  the  West- 
ern Rate  Advance  case  of  1915,  those  more  comprehensive  com- 
parisons were  presented  and  relied  on  as  tending  to  show  the 
propriety  of  selecting  for  rate  advances  the  commodities  af- 
fected by  the  tarififs  there  under  suspension  and  investigation.''^ 

§  100.  General  Business  Conditions. — How  far  rates  may 
be  affected  by  the  business  situation  of  the  country  and  the  ship- 
pers has  been  the  subject  of  consideration  in  several  cases.  It 
will  be  admitted  that  the  fact,  when  such  fact  exists,  that  a  ship- 
per has  a  ready  market  for  his  goods  at  a  good  price,  aft'ects  the 
value  of  the  service  to  the  shipper  and  may  be  considered  in  de- 
termining what,  in  a  particular  case,  is  a  reasonable  rate.  It  is 
also  true  that  prosperous  times  may  and  generally  do  increase  the 
price  of  both  labor  and  equipment  necessary  for  the  carrier  to 
operate,  thus  affecting  "the  cost  of  service,"  and  consequently 
furnishing  a  fact  that  is  an  element  among  the  many  considera- 
tions entering  into  a  determination  of  what  is  the  proper  rate  to 
be  charged   for  transportation.      Rut   the  mere   fact   of  general 

Case,   22    I.    C.    C.    604,    620;    con-  Flax   Seed   Products,   27   I.    C.    C. 

strued.    Rock    Springs    Distilling  246,  248;  Little  Rock  Chamber  of 

Co.  V.  Illinois  C.  R.  Co.,  27  I.  C.  Commerce  v.   St.  Louis,  I.   M.   & 

C.  54,  57;  Milburn  Wagon  Co.  v.  S.  R.  Co.,  26  L  C.  C.  341,  343. 
Toledo,  St.  L.  &  W.  R.  Co..  27  L  '« Western    Rate   Advance    Case 

C.  C.  63,  66;   Re  Export  Rates  of  1915,   35    I.    C.    C.    497. 


§  100.]  Must  Be  Reasonable.  179 

prosperity,  or  of  general  depression,  will  not  justify  a  carrier  in 
absorbing  the  one  or  shifting  the  other  to  the  shipper.  "Trans- 
portation by  rail  is  a  service  of  a  quasi  public  nature,  not  to  be  , 
sold  to  the  highest  bidder,  nor  subject  to  the  law  of  supply  and 
demand."  ^"  "The  claim"  that  the  carriers  may  absorb  all  or 
part  of  the  prosperity  of  the  shipper,  says  Mr.  Commissioner 
Clements  "is  based  upon  the  erroneous  assumption,  so  prevalent 
among  traffic  managers,  that  a  rate  may  .be  made  as  high  as  'the 
traffic  will  bear.'  "  ^^  When  rates  have  been  reduced  because  it 
was  necessary  to  meet  conditions  caused  by  depressed  financial  ■ 
conditions,  such  rates  may  be  advanced  in  prosperous  times  to 
the  point  where  they  are  reasonable.  Mr.  Commissioner  Prouty, 
in  the  able  discussion  of  the  principles  of  rate  making  already 
quoted  from,  says  :  ^^ 

"No  reduction  in  these  rates  has  been  made  in  the  past  for  the 
purpose  of  stimulating  the  movement  of  this  traffic.  The  amount 
of  these  advances  is  so  slight  as  compared  with  the  selling  price 
of  the  article  transported  that  they  produce  no  effect  whatever 
upon  the  volume  of  the  traffic.  Now  with  respect  to  a  rate  of 
this  kind  we  do  not  think  an  increase  in  the  price  of  the  article 
transported  justifies  of  itself  an  increase  in  the  freight  rate. 
These  rates  were  not  reduced  when  the  prices  fell :  why  should 
they  be  advanced  when  prices  rise?  An  incident  v/hich  occurred 
in  this  very  case  strongly  emphasizes  the  absurdity  of  the  claim. 

"Cotton  is  an  important  item  of  traffic  upon  the  International 
&  Great  Northern  Railroad,  one  of  these  respondents.  It  is 
well  known  that  the  ravages  of  the  boll  weevil  have  seriously 
affected  the  cotton  crop  in  certain  parts  of  Texas.  The  attorney 
for  the  International  &  Great  Northern,  himself,  a  former  rail- 
road commissioner  of  Texas  and  a  thoughtful  student  of  this 
subject,  gave  as  a  reason  for  the  advances  in  question  in  which  his 
line  participates,  that  owing  to  the  boll  weevil  the  cotton  crop 
upon  a  large  part  of  his  road  was  a  failure,  and  that  this  reduced 


'■  Re      Proposed     Advances      in  C.   548,   582;   Central  Yellow  Pine 

Freight  Rates,  9  I.  C.  C.  382,  405.  Asso.    v.    111.    Cent.    R.    Co,    10    I. 

See  also  Freight  Bureau  of  Cin-  C.    C.    505. 

cinnati  v.  Cincinnati,  N.  O.  &  T.  °' Re      Class     and      Commodity 

P.  Ry.  Co.,  f)  I.  C.  C.  195.  4  I.  C.  Rates    from    St.    Louis    to    Texas 

R.   592.   617.  Common    Points.   11    I.    C.   C.   238, 

"'Tift  V.   So.   Ry.   Co..    10   I.   C.  272.  273. 


180  Charges  by  Common  Carriers  [§  100. 

the  amount  of  cotton  for  transportation ;  that  in  consequence 
of  the  failure  of  this  important  crop  the  whole  country  was 
•  impoverished  and  was  able  to  purchase  less,  which  also  contrib- 
uted to  reduce  the  income  of  his  railroad.  For  these  reasons  it 
had  become  necessary  to  advance  rates  in  order  to  obtain  suf- 
ficient revenue  with  which  to  operate  the  road  and  pay  a  fair 
return  upon  the  investment.  Here,  therefore,  we  have  in  the 
same  case  and  by  parties  of  the  same  general  system  a  claim  upon 
the  one  hand  that  these  advances  are  justified  by  general  condi- 
tions of  prosperity  and  upon  the  other  hand  that  they  are  justified 
by  general  conditions  of  adversity. 

"Railroads  should  share  in  the  general  prosperity.  They  should 
do  this  partly  by  being  able  to  advance  those  rates  w-hich  have 
declined  under  commercial  conditions.  They  should  do  it  still 
more  by  the  increased  traffic  which  they  obtain.  In  times  of 
prosperity  when  money  is  plenty  and  business  good  people  ride 
more,  buy  more,  new  industries  are  being  established  and  old 
industries  are  active,  traffic  increases  and  out  of  such  increased 
traffic  the  railway  obtains,  by  automatic  action  so  to  speak, 
without  any  advance  in  its'  rate  a  large  share  in  the  general  pros- 
perity." 

The  opinions  of  Commissioners  Clements  and  Prouty,  supra, 
are  in  accord.  The  carrier  may  not  absorb  the  prosperity  of  the 
shipper,  but  when  prosperity  exists  the  carriers  may  restore 
rates  "that  have  declined  under  commercial  conditions."  If  the 
prosperity  of  the  country  adds  to  the  density  of  the  traffic,  it 
might,  in  some  cases,  furnish  a  reason  for  reductions  in  rates. 

In  the  1910  Western  Rate  Advance  case,  p.  31 5, ^^^  the  broad 
view  which  the  Commission  may  take  was  discussed.  It  was 
there  said :  "It  must  be  borne  in  mind  that  the  Commission  is  not 
a  court  of  law ;  its  function  is  to  apply  the  mandatory  and  re- 
strictive provisions  of  the  Act  to  Regulate  Commerce  to  stated 
conditions  of  fact.  We  must  regard  the  problems  presented 
to  us  from  as  many  standpoints  as  there  are  public  interests  in- 
volved. *  *  *  f  he  reasonableness  of  a  rate  is  to  be  deter- 
mined bv  no  mere  mathematical  calculation." 

And  in  the  further  course  of  the  opinion  in  that  case,  p.  317: 
"It  is  doubtless  true  that  in  its  control  over  the  charges  which 

'""Advance    in    Rates— Western    Case— 20  I.   C.   C.  307.  315,  317. 


§  101.]  Must  Be  Reasonable.  181 

our  railroads  may  make  this  Commission  exercises  a  power  so 
extensive  as  to  justify  the  broadest  consideration  of  the  economic 
and  financial  effects  of  its  orders." 

Notwithstanding  the  fact  that  business  conditions  should  be 
considered  in  making  and  judging  rates,  it  is  not  permissible  to 
fix  rates  lower  than  are  just  and  reasonable,  because  of  the  in- 
ability of  a  particular  commodity  to  bear  such  rates.  Mr.  Com- 
missioner Daniels,  citing  prior  decisions  of  the  Commission  in 
deciding  the  claim  for  lesser  rates  based  upon  the  statement  that 
the  prices  received  were  less  than  the  actual  cost  of  production, 
said:^^^  "It  should  be  observed,  however,  that  the  reasonable- 
ness or  unreasonableness  of  freight  rates  can  not  be  gauged 
solely  by  the  ability  or  inability  of  shippers  under  depressed 
prices  to  market  their  products  at  the  existing  rates  with  a  rea- 
sonable margin  of  profit.  Such  a  doctrine  would  lead  to  the 
conclusion  that  the  differential  burdens  of  production  arising 
from  natural  disadvantages,  distance  from  market,  and  other 
economic  difficulties  of  all  communities  and  industries  should  be 
neutralized  and  absorbed  by  the  carriers  which  serve  them." 

§  101.  Estoppel. — Where  carriers,  in  the  exercise  of  their 
right  to  determine  the  policy  under  which  their  rates  are  to  be 
made,  establish  a  rate  for  the  purpose  of  developing  a  particular 
industry,  called  by  the  carriers,  "Missionary  Rates,"  they  are  not 
estopped  from  advancing  such  rates  when  the  resultant  rates  are 
not  unreasonable,  and  the  fact  that  such  rates  were  so  estab- 
lished is  not  alone  sufficient  evidence  to  justify  a  finding  that  the 
advanced  rates  are  unreasonable  and  violative  of  section  one  of 
the  interstate  commerce  act.  In  Western  Oregon  Lumber  Manu- 
facturers' Association  v.  Southern  Pacific  Co.,^*^-  the  Commission 
held  that  when  the  Southern  Pacific  Co.  established  a  rate  for  the 
purpose  of  developing  the  lumber  industry  of  a  particular  sec- 
tion, which  rate  it  maintained  with  brief  intervals  for  six  years, 
an  advance  thereon,  when  "on  the  strength  of  this  rate  that 
industry    had    attained    considerable    proportions,"    was    unrea- 


"^  Railroad    Com.    of    Montana  '"- Western      Oregon      Lumber 

V.  B.  A.  &  P.  Ry.  Co.,  31  I.  C.  C.  Mfrs.     Assn.     v.     Southern     Pac. 

641,  644;  and  see  N.  P.  R.  Co.  v.  Co..    14   I.    C.    C.    61.     See    also 

North   Dakota,  236  U.   S.   585,   59  Northbound  Rates  on  Hardwood, 

L.   Ed.  — ,  35   Sup.   Ct.   429.  32  I.   C.   C.  521,  524. 


182  Charges  by  Common  Carriers  [§  101. 

sonable.  The  question  of  the  vaHdity  of  this  order  having 
come  before  the  Supreme  Court,  that  court  in  speaking  of 
the  contention  of  the  carriers,  said :  "That  is  to  say  the 
contention  is  that  the  order  entered  by  the  Commission  shows 
on  its  face  that  that  body  assumed  not  only  that  it  had 
power  to  prevent  the  charging  of  unjust  and  unreasonable 
rates,  but  also  to  regulate  and  control  the  general  policy  (italics 
supplied)  of  the  owners  of  railroads  as  to  fixing  rates,  and  con- 
sequently that  there  was  authority  to  substitute  for  a  just  and 
reasonable  rate  oiie  which  in  and  of  itself  in  a  legal  sense  might 
be  unjust  and  unreasonable,  if  the  Commission  was  satisfied  that 
it  was  a  wise  policy  to  do  so,  or  because  a  railroad  had  so  con- 
ducted itself  as  to  be  estopped  in  the  future  from  being  entitled 
to  receive  a  just  and  reasonable  compensation  for  the  service 
rendered."  ^''^ 

While  the  attorneys  representing  the  Commission  before  the 
Supreme  Court  disclaimed  for  the  Commission  any  such  con- 
struction of  the  order,  the  order  was  construed  by  the  court  to 
mean  what  was  contended  in  the  foregoing  quotation. 

In  speaking  of  the  power  necessary  to  enter  the  order  as  it 
was  construed,  the  court  said :  This  "extraordinary  power  which 
the  railroads  thus  say  was  exerted  in  rendering  the  order  com- 
plained of,  a  power  which  if  obtained,  would  open  a  vast  field 
for  the  exercise  of  discretion,  to  the  destruction  of  rights  of 
private  property  in  railroads  and  wotild  in  efifect  assert  public 
ownership  withotit  any  of  the  responsibilities  which  ownership 
would  imply." 

The  court  having  given  the  Commission's  order  a  construction 
as  indicated  by  the  contention  made,  held  the  order  void. 

The  Commerce  Court,  citing  the  Supreme  Court  case,  supra, 
and  in  speaking  of  orders  of  the  Commission,  said :  "Its  orders 
must  be  based  on  transportation  considerations,  and  while  it  may 
give  weight  to  all  factors  bearing  either  on  the  cost  or  value  of 
the  transportation  service,  it  must  disregard  as  well  the  demand 
of  the  shipper  for  protection  from  legitimate  competition,  domes- 
tic or  foreign,  for  unlimited  markets,  or  for  the  enforcement  of 
equitable   estoppels   arising   from   a    justifiable   expectation  -that 


"'  Southern    Pac.    Co.    v.    Inter-       444.    55    L.    Ed.    283.    31    Sup.    Ct. 
state   Com.   Com.,   219   U.    S.   433,       288. 


§  102.]  Must  Be  Reasonable.  183 

past  rates  will  be  maintained.''  ^•'■^  That  because  a  carrier  has 
maintained  a  low  rate  upon  which  business  has  been  built  up, 
the  carrier  may  not  advance  its  charges  to  a  reasonable  rate, 
is  unquestionably  true.  This  is  true  because  all  parties  know 
that  rates  are  subject  to  legislative  control  and  estoppel  can  not 
apply,  and  Congress  has  not  as  yet  given  the  Commission  power 
to  initiate  rates  but  has  left  the  general  policy  pf  rate  making 
to  the  carriers,  subject  only  to  the  specific  provisions  of  the 
statutes  regulating  interstate  commerce.  Nor  does  the  de- 
cision of  the  Supreme  Court  necessarily  mean  that  there  is  no 
evidentiary  value  in  the  proof  that  a  rate  was  established  to  en- 
courage an  industry  whose  prosperity  is  dependent  upon  a  con- 
tinuation of  the  rate.^^^  There  is  nothing  in  the  decision  of  the 
Supreme  Court  which  prevents  the  Commission  from  giving 
consideration  to  the  presumption  arising  from  the  fact  that  the 
carriers  selling  transportation  have  long  fixed  a  particular  value 
thereon.     This  presumption  is  discussed  in  the  next  section. 

It  is  also  true  that  carriers  "may  not  make  contracts  which 
abrogate  the  Act  to  Regulate  Commerce,"  and  such  contracts 
can  not  prevent  the  Commission  from  determining  the  rate  in- 
volved therein  and  prescribing  when  necessary  a  different  rate 
or  practice. 1^^ 

§  102.  Rates  Long  in  Existence  Are  Presumed  to  Be 
Reasonable. — When  conditions  have  not  materially  changed, 
it  is  consistent  with  the  motives  which  usually  actuate  mankind 
to  presume  that  a  rate  long  in  existence  is  reasonable  and  that 
the  burden  of  proof  is  on  him  who  seeks  to  obtain  or  justify 
another   and    higher   rate.      As    early   as    1889   the   commission, 


"^Atchison,  T.  &  S.  F.  Ry.  Co.  cago,  M.  &  St.  P.  Ry.  Co.,  14  I. 

V.  Interstate  Com.  Com.,  190  Fed.  C.   C.  121.     See  also  Commercial 

591       (Lemon      Case),      Opinion  Coal    Co.    v.    Baltimore    &   O.    R. 

Commerce    Court    No.    7,    p.    83:  Co.,  15  I.  C.  C.  11;  Menefee  Lum- 

same   case,   203   Fed.   56,   Opinion  ber   Co.   v.   Texas   &   P.   Ry.    Co., 

Commerce   Court  No.   61,   p.   5.37.  15  I.  C.  C.  49;  Penn  Tobacco  Co. 

"'  Louisville     &    N.     R.    Co.     v.  v.  Old  Dominion  Steamship  Co., 

Finn,  235  U.  S.  601,  59  L.  Ed.  — ,  18  L  C.  C.  197;  Baltimore  Butch- 

35   Sup.   Ct.   146;   Dulutli,   Minne-  ers  Abattoir  &  Live  Stock  Co.  v. 

sota  Log  Rates,  29   L   C.   C.   420,  Philadelphia,  B.  &  W.  R.  Co.,  20 

421.  L    C.    C.    124,    128. 

"°Ottumwa   Bridge  Co.  v.  Chi- 


184  Charges  by  Common  Carriers  [§  102. 

speaking  of  a  rate  sought  to  be  changed  by  a  carrier,  said:  "It 
has,  without  the  pressure  of  competition  other  than  on  equal 
terms,  long  continued  this  rate  and  as  long  been  making  evi- 
dence that  this  nineteen-cent  rate  is  not  unreasonably  low."  ^^~ 
The  principle  was  again  announced  in  the  Food  Products  Case  ^^^ 
and  in  Proctor  v.  Cincinnati,  H.  &  D.  R.  Co.^"**  ]\Ir.  Commis- 
sioner Prouty.  in  Holmes  z'.  Southern  Ry.  Co.,^^'^  announced 
the  rule  in  this  language :  "The  continuance  of  a  given  rate  is 
not  conclusive  evidence  of  the  reasonableness  of  that  rate,  but 
when  a  railway  company  advances  a  rate  which  has  been  for 
some  time  in  force,  the  fact  of  its  continuance  is  in  the  nature 
of  an  admission  against  that  company,  which  tends  to  show  the 
unreasonableness  of  the  advance ;  and  the  force  of  this  admis- 
sion becomes  great  in  view  of  the  general  decline  in  the  average 
of  railway  rates  and  the  lessened  cost  of  service."  The  general 
rule  is  recognized,  but  found  not  applicable  to  the  facts  in  Proc- 
tor V.  Cincinnati,  H.  &  D.  R.  Co.^^^  In  the  Central  Yellow  Pine 
Asso.  Case  ^^-  the  commission  said:  "When  carriers  advance  a 
rate  which  has  been  for  soUie  time  in  force,  the  burden  of  proof 
is  upon  them  to  show  sufficient  grounds  for  such  advance."  In 
the  Tift  case  ^^'^  this  language  was  used:  "The  maintenance  of 
materially  lower  rates  for  such  long  periods  of  time  brings  this 
case  within  the  rule  that  'when  an  advance  is  made  in  rates 
which  have  long  been  maintained  and  the  evidence  shows  that 
the  traffic  affected  is  large,  important  and  constantly  increasing, 
the  advance  will  be   held  unjust   unless   it  is   satisfactorily  ex- 


"'  Logan  et  al.,  Com.  of  North-  further   history    of   this    case,    see 

western    Grain    Asso.    v.    Chicago  Interstate    Com.    Com.   v.    Cincin- 

&  N.  W.   R.   Co..  2   I.   C.   C.  604,  nati,    H.    &   D.    R.    Co.,    146    Fed. 

2   I.   C.   R.   431,   434.  559;    Cincinnati,   H.    &  D.   R.    Co. 

^"^  Re  Alleged  Excessive  Freight  v.   Interstate  Com.   Com.,  206  U. 

Rates    on    Food    Products,    4    I.  S.  142,  51  L.  Ed.  995,  27  Sup.  Ct. 

C.  C.  48,  3  I.  C.   R.  93.  648,  enforcing  order  of  the  Com- 
^'^  Proctor   V.    Cincinnati,    H.    &  mission. 

D.  R.  Co.,  4   I.   C.   C.  87,  3  I.   C.  "=  Central    Yellow     Pine    Asso. 
R.  131.  V.   111.    Cent.   R.    Co.,   10   I.    C.    C. 

''"  Holmes  v.  Southern  Ry.   Co.,  505. 
8   I.   C.   C.  561.  568.  "'Tift  v.  So.   Ry.   Co.,   10   I.   C. 

'"Proctor    V.    Cincinnati,    H.    &  C.  548. 
D.   R.    Co.,   9   I.    C.    C.    440.     For 


1 


§  103.]  Must  Be  Reasonable.  185 

plained.'  "  Each  of  these  cases  were  tried  in  the  circuit  court 
and  reached  the  Supreme  Court  where  both  were  affirmed. ^i* 
In  the  Yellow  Pine  case  the  Supreme  Court  said :  "The  ques- 
tion submitted  to  the  commission  *  *  *  was  one  which 
turned  on  matters  of  fact.  In  that  question,  of  course,  there 
were  elements  of  law,  but  we  can  not  see  that  any  one  of  these 
or  any  circumstances  probative  of  the  conclusion  was  over- 
looked or  disregarded."  It  was  stated  by  the  Supreme  Court 
that  the  Tift  case,  supra,  depended  "upon  the  same  legal  con- 
siderations," as  the  Yellow  Pine  case. 

The  case  of  Memphis  Cotton  Oil  Co.  r.  Illinois  Cent.  R.  Co., 
17  I.  C.  C.  313,  while  not  repudiating  the  doctrine  above,  states 
it  less  clearly  than  some  of  the  prior  decisions  of  the  Com- 
mission. It  is  a  fundamental  law  that  acts  of  an  individual  are 
presumptively  not  contrary  to  his  interests,  and  as  said  by  Judge 
Wallace,  in  Menacho  v.  Ward,  27  Fed.  529,  532,  23  Blatch.  502 : 
"The  estimate  placed  by  a  party  upon  the  value  of  his  own  services 
or  property  is  always  sufficient,  against  him,  to  establish  the  real 
value ;  but  it  has  augumented  probative  force,  and  is  almost  con- 
clusive against  him,  when  he  has  adopted  it  in  a  long-continued 
and  extensive  course  of  business  dealings." 

§  103.  Same  Subject. — The  Supreme  Court,  in  the  case  of 
Int.  Com.  Com.  v.  Chicago  G.  \\\  Ry.  Co.,^^^  without  referring 
to  the  Tift  or  Yellow  Pine  case,  said :  "It  must  also  be  remem- 
bered that  there  is  no  presumption  of  wrong  arising  from  a 
change  of  rate  by  a  carrier.  *  *  *  Undoubtedly  when  rates 
are  changed  the  carrier  making  the  change  must,  when  properly 
called  upon,  be  able  to  give  a  good  reason  therefor,  but  the  mere 
fact  that  a  rate  has  been  raised  carries  with  it  no  presumption 
that  it  was  not  rightfully  done."  These  decisions  of  the  Su- 
preme Court  are  harmonious.  The  fact  that  a  "good  reason" 
must  be  given  by  the  carrier  is  equivalent  to  saying  that,  "the 
advance  will  be  held  unjust  unless  it  is  'satisfactorily  explained,' 


"*Tift  V.  So.  Ry.  Co.,  138  Fed.  "'Interstate  Com.  Com.  v.  Chi- 

753;  So.  Ry.  Co.  v.  Tift,  148  Fed.'  cago   G.   W.   Ry.    Co.,   209   U.    S. 

1021,  206  U.  S.  428.  51  L.  Ed.  1124,  108,    119,   52   L.   Ed.   705,   712,   713, 

27  Sup.  Ct.  709;  111.  Cent.  R.  Co.  28    Sup.    Ct.    493,    affirming   same 

V.  Int.  Com.  Com.,  206  U.  S.  441,  styled    case,    141    Fed.   1003. 
51  L.  Ed.  1128,  27  Sup.  Ct.  700. 


186  Charges  by  Commox  Carriers  [§  103. 

that  is,  unless  a  'good  reason'  therefor  is  given."  ]Mr.  Commis- 
sioner Clements  ^^"^  discusses  these  cases,  and,  after  quoting  from 
the  decision  of  tlie  Supreme  Court  in  the  Great  Western  case, 
says,  "This  is  a  mere  affirmance  of  what  the  act  to  regu- 
late commerce  itself  recognizes  as  a  right  of  the  carriers,  viz., 
the  right  to  initiate  rates.  And  it  must  be  apparent  that  were  a 
'presumption  of  wrong'  to  attach  to  any  change  in  rates  which 
the  carriers  are  authorized  to  establish,  this  must  result  in  a 
denial  of  the  free  exercise  of  the  right  guaranteed  by  the  act. 
But  it  would  be  going  far  to  say  that  the  language  above  quoted 
is  authority  for  the  inference  that  the  Supreme  Court  does  not 
still  recognize  the  principle  that  a  rate  which  has  been  in  force 
for  a  long  period  of  years  and  with  respect  to  which  commer- 
cial conditions  have  been  adjusted,  which  rate  has  presumably 
afforded  a  reasonable  return  to  the  carrier,  may  not  be  materially 
advanced  without  imposing  upon  the  carriers  the  burden  of 
justifying  the  increase." 

The  principle  that  the  long  maintenance  of  rates  is  evidence 
that  such  rates  are  reasonably  high,  was  applied  bv  the  Supreme 
Court  in  a  case  where  rates  were  fixed  by  the  Railroad  Commis- 
sion of  the  state  of  Kentucky.  Mr.  Justice  Pitney,  delivering 
the  opinion  of  the  Court,  said:^^"  "Since  it  appeared  that  the 
company,  long  prior  to  ]\Iarch  25.  1910,  had  voluntarily  estab- 
lished the  comparatively  low  rates  upon  a  substantial  part  of 
their  traffic,  had  maintained  them  for  many  years  after  the  rea- 
son assigned  for  originally  introducing  them  had  ceased  to  ex- 
ist, and  had  then  withdrawn  them,  not  upon  the  ground  that  they 
were  inadequate,  but  because  they  gave  rise  to  discrimination, 
and  in  so  doing  had  introduced  rates  very  much  greater,  it  seems 
to  us  that  the  conduct  of  the  carrier,  in  the  absence  of  some  ex- 
planation more  conclusive  than  any  that  was  made,  was  suffi- 
cient basis  for  a  reasonable  inference  that  the  special  rates  in 
force  prior  to  ]\Iarch  25  upon  the  distillery  supplies  were  rea- 


"' Pacific  Coast  Lumber  Mnfrs.  "'Louisville    &    X.    R.    Co.    v. 

Asso.   V.    X.    Pac.    Ry.    Co..    14    L  Finn.    235    U.    S.    601.    59    L.    Ed. 

C.   C.  23,   38.     See   also   Re   Class  — .  35  Sup.  Ct.  146,  147;  Int.  Com. 

and    Commoditj'   Rates    from    St.  Com.  v.   Louisville  &  N.   R.   Co., 

Louis   to  Texas   Common   Points,  227   U.   S.   88.   99,    57    L.    Ed.   431, 

11    L    C.    C.    238.  436,    33    Sup.    Ct.    185.. 


§  104.]  Must  Be  Reasonable.  187 

sonable  and  adequate  compensation  for  that  and  other  similar 
traffic,  and  that  the  rates  thereafter  charged  were  unreasonably 
high  to  the  extent  of  being  extortionate." 

§  104.  Voluntary  Reduction  of  Rates. — Where  a  carrier 
voluntarily  reduces  its  rates,  that  fact  under  the  principle  appli- 
cable to  presumptions  would  be  evidence  that  from  and  after 
the  date  of  the  reduction  the  resultant  rate  was  reasonably  high. 
Such  a  presumption,  however,  should  not  be  indulged  to  the  ex- 
tent of  holding  that  the  act  of  the  carrier  is  proof  sufficient  that 
the  rate  in  force  prior  to  the  reduction  was  unreasonably  high. 
To  hold  such  a  presumption  to  be  conclusive  would  make  it  dan- 
gerous for  carriers  ever  voluntarily  to  reduce  rates.  On  this 
subject  the  Commission  has  said:  "The  subsequently  established 
lower  rate  is  now  a  just  and  reasonable  rate  over  the  defendant 
lines ;  but  the  Commission  is  unwilling  to  subscribe  to  the  theory 
that  the  voluntary  reduction  of  a  rate  by  a  carrier  conclusively 
shows  that  the  former  rate  was  unreasonable  and  that  repara- 
tion should  be  granted  on  all  shipments  moving  thereunder  within 
the  period  of  the  statute  of  limitations."  ^^^ 

§  105.  Same  Subject— Act  June  18,  1910.— By  Act  of 
June  18,  1910,11^  it  is  provided :  "Whenever  there  shall  be  filed 
with  the  Commission  any  schedule  stating  a  new  individual  or 
joint  rate,  fare  or  charge,  or  any  new  individual  or 
joint  classification,  or  any  new  individual  or  joint  regulation 
or  practice  affecting  any  rate,  fare  or  charge,"  the  Commission 
may,  as  provided  in  the  amendment  "enter  upon  a  hearing  con- 
cerning the  propriety  of  such  rate,  fare,  charge,  classification,  regu- 
lation or  practice,"  and  "after  full  hearing,  *  *  *  the  Commis- 
sion may  make  such  order  in  reference  to  such  rate,  fare,  charge, 
classification,  regulation,  or  practice"  as  it  might  make  in  an  or- 
dinary proceeding  complaining  of  an  existing  rate.  It  is  fur- 
ther provided  that,  "At  any  hearing  involving  a  rate  increased 
after  January  1,  1910,  or  of  a  rate  sought  to  be  increased  after 


"'Ottumwa    Bridge    Co.    v.    C,  bacco      Co.      v.      Old      Dominion 

M.   &   St.   P.   R.   Co.,   14   I.   C.   C.  Steamship    Co..    IS    I.    C.    C.    197; 

121,  125;  Commercial  Coal  Co.  v.  Baltimore    Butchers    Abattoir    v. 

B.   &  O.   R.   Co..   15   I.   C.   C.   11;  P.   B.   &  W.   R.   Co.,  20   I.   C.   C. 

Menefee  Lumber  Co.  v.  T.   &  P.  124. 

Ry.  Co.,  15  I.  C.  C.  11;  Penn  To-  ™  Post,   Sees.   398.   and   399. 


188  Charges  by  Common  Carriers  [§  105. 

the  passage  of  this  Act,  the  burden  of  proof  to  show  that  the  in- 
creased rate  or  proposed  increased  rate  is  just  and  reasonable 
shall  be  upon  the  common  carrier." 

This  burden  is  fixed  as  to  the  rate  although  the  clear  mean- 
ing of  the  whole  section  is  that  when  any  change  is  made  in  any 
classification,  regulation  or  practice  affecting  and  increasing  a 
rate,  the  burden  of  justifying  the  change  is  upon  the  carrier.  A 
change  that  did  not  increase  the  rate  would  not,  as  to  the  bur- 
den of  proof,  be  affected  by  the  amendment. 

This  statutory  rule  as  to  burden  of  proof  does  not  lessen 
the  force  of  the  rules  of  evidence  stated  in  the  preceding  two 
sections.  The  Commission,  in  speaking  of  a  rate  in  force  for 
a  Cjuarter  of  a  century  and  which  had  been  materially  advanced 
in  the  last  seven  years,  held  that  the  reason  justifying  a  further 
advance  "must  be  even  more  cogent,"  and  that  the  history  of 
the  rates  "was  evidence  which  bears  strongly  upon  the  propriety 
of  the  *  *  *  increase."  ^-^  In  a  still  more  recent  case  the 
rule  was  stated  with  its  proper  limitations  as  follows:  "Un- 
doubtedly a  presumption  of  reasonableness  arises  from  the  long 
existence  of  a  rate ;  but  if  this  presumption  were  conclusive,  nec- 
essary and  proper  changes  in  rates  would  be  prohibited."  ^^^ 

The  Commerce  Court, i--  citing  the  Great  Western  case,^^^ 
gave  that  case  a  somewhat  wider  meaning  than  was  meant  by 
the  opinion  therein.  In  reversing  the  Commerce  Court,  the  Su- 
preme Court  cited  the  Great  Western  case,  but  said :  "Under 
the  circumstances  the  maintenance  of  these  low  rates,  after  the 
water  competition  disappeared,  tends  to  support  the  theory  that 
by  an  increase  of  business  or  other  cause  they  had  become  rea- 

'■"  United  States  Leather  Co.  v.  of  Omaha  v.   Southern   Pac.   Co., 

Southern    Ry.    Co.,    21    I.    C.    C.  20  I.  C.  C.  631. 

323.  327.  ''^  Louisville  &  X.  R.  Co.  V.  In- 

^''  Robinson     Land    &     Lumber  terstate     Com.     Com.,     195     Fed. 

Co.  V.  Mobile  &  O.  R.  Co.,  26  L  o-il,  557,  Opinion  Commerce  Court 

C.    C.    427,    429.      For    illustrative  No.  4,  pp.  325,  375,  and  see  same 

application    of  the  principle    see,  st3^1ed  case,  184  Fed.  118,  denying 

Ocheltree   Grain   Co.  v.  St.  Louis  a   preliminary   application   for   in- 

&    S.    F.    R.    Co..    13    L    C.    C.    46;  junction. 

Millar  v.   New  York   C.  &  H.   R.  '"-'  Int.    Com.    Com.    r.  Chicago 

R.    Co.,    19    L    C.    C.    7S;    Audley,  G.  W.  Ry.  Co..  209  U.  S.  108,  119, 

Hill   &   Co.  V.   Southern    Ry.   Co..  52    L.    Ed.    705.    712.   713.   28    Sup. 

20  L  C.  C.  225;   Commercial  Club  Ct.   493. 


§  106.]  IMusT  Be  Reasonable.  189 

sonable  and  compensatory."  So,  the  presumption  may  or  may 
not  arise  and  all  the  facts  must  be  considered.  The  syllabus  of 
the  opinion  is  as  follows :  "The  vakie  of  evidence  in  rate  pro- 
ceedings varies,  and  the  weight  to  be  given  to  it  is  peculiarly  for 
the  body  experienced  in  regard  to  rates  and  famihar  with  the 
indicias   of   rate-making." 

"When  rail  rates  are  advanced  with  the  disappearance  of  wa- 
ter competition,  no  inference  adverse  to  the  railroads  can  be 
drawn,  but  when  the  old  rates  had  been  maintained  for  sez'eral 
years  after  such  disappearance  tJicre  is  a  prcsniiiptioii  if  the  rates 
are  raised  that  the  advance  is  made  for  other  purposes."  ^-* 
The  italics  do  not  aj^pear  in  the  syllabus. 

§  106.  Grouping  Territory  and  Giving  Each  Group  Same 
Rate  Legal  under  Some  Circumstances. — It  has  been  and  is 
yet  a  practice  with  carriers  to  group  contiguous  territory  and 
give  the  same  rate  to  all  points  within  a  particular  group.  This 
practice  is  called  "blanketing."  The  commission  in  1888,  speak- 
ing of  this  practice,  said:^^^ 

"This  is  a  practice  which  prevails  very  largely  in  the  making 
of  rates  and  results  in  giving  to  some  towns  rates  which  are  rel- 
atively lower  than  are  charged  to  others.  It  is  probably  a  con- 
venient practice  to  the  railroad  companies  or  it  would  not  be 
so  often  adopted ;  and  it  may  sometimes  tend  to  equalize  rail- 
road advantages  as  between  towns  without  wronging  any  one. 
The  system  is  not  necessarily  illegal,  it  only  becomes  illegal  when 
it  can  be  shown  that  illegal  results  flow  from  it." 

The  practice  is  not  approved  by  the  commission,  however, 
when  "the  difference  in  the  transportation  expense  from  the 
various  parts  of  such  district  is  considerable  and  substantial."  ^-^ 

"'  Int.  Com.  Com.  t.  Louisville  R.  Co.,  2  I.  C.  C.  584,  2  I.  C.  R. 

&^N.   R.   Co.,   227  U.   S.   88.   57   L.  414:   Howell   v.   New  York,   L.   E. 

Ed.    431,    33    Sup.    Ct.    1S5.       See  &    \V.    R.    Co.,    2    I.    C.    C.    272,    2 

also  note   105  this  chapter.  I.    C.    R.    162;    Imperial    Coal    Co. 

'"'  LaCrosse     Manufacturers'    &  v.  Pittsl)urg  &  L.  E.  R.  Co.,  2  I. 

Jobbers'  Union  v.  Chicago,  M.  &  C.  C.  618,  2  I.  C.  R.  436. 
St.  P.  R.  Co.,  1  I.  C.  C.  629,  631,  '-"Newland   v.    N.    Pac.    R.    Co., 

2   I.   C.   R.   9,   10.     See  also   Busi-  6  I.  C.  C.  131,  4  I.  C.  R.  474,  480; 

ness  Men's  Asso.  of  Minnesota  v.  Merchants'     Union     of     Spokane 

Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  Falls  v.  N.  Pac.  R.  Co.,  5  I.  C.  C. 

2   I.    C.   C.   12,   52,   2   I.    C.   R.   41,  478,  4  I.  C.  R.  183;  Rea  V.  Mobile 

46;   Lippman   &   Co.   v.   111.    Cent.  &  O.   R.   Co.,  7   I.   C.   C.  43. 


190  Charges  by  Common  Carriers  [§  107. 

Texas  is  arranged  in  groups  for  rate-making  purposes,  and 
when  the  parties  to  the  case  are  satisfied  with  the  system,  the 
commission  will  not  disturb  it.^-" 

But  in  referring  to  the  holding  in  the  Farmers,  ^Merchants  & 
Shippers  Club  case,  supra,  the  Commission  said:  "In  so  holding 
we  said  that  the  reasonableness  of  these  rates  must  be  deter- 
mined not  by  considering  the  rate  from  the  point  of  origin  to  a 
particular  station  in  the  group,  but  rather  as  applicable  to  the 
entire  group.  It  is  evident  that  every  system  of  group  rates  must 
occasion  more  or  less  discrimination.  The  rate  to  the  nearer  edge 
of  the  group  as  compared  with  that  to  the  more  distant  edge  is 
of  necessity  discriminatory."  '^-^ 

In  concluding  the  opinion  of  the  Commission.  [Mr.  Commis- 
sioner Prouty  said:  "It  is  impossible  to  pass  abruptly  from  the 
group  system." 

There  are  many  cases  in  the  reports  of  the  Commission  rec- 
ognizing the  group  system  of  rates,  some  of  which  will  be  dis- 
cussed in  the  chapter  on  Equality  in  Rates.  In  this  section  the 
reasonableness  of  rates  is  under  discussion  and  the  group  system 
is  opposed  to  the  distance  basis. 

Considering  distance  and  the  group  system,  the  Commission 
said :  "Distance  is,  of  course,  a  factor  to  be  considered  in  de- 
termining the  reasonableness  of  rates,  and  when  rates  are  con- 
structed upon  this  basis,  and  other  things  are  equal  it  may  be- 
come a  very  important  factor.  When,  however,  as  in  this  case. 
rates  are  constructed  and  maintained  upon  the  group  system  and 
the  subject  matter  is  a  heavy  commodity  like  coal,  and  the  dif- 
ferences in  distance  are  relatively  inconsiderable,  such  differ- 
ences do  not  of  themselves  compel  differences  in  rates."  ^-^ 

§  107.  Grouping  Producing  Points,  and  Making  Zones 
Taking  Same  Rates. — The  principles  discussed  in  the  forego- 

« 

"^^  Farmers,   Merchants   &   Ship-  For   a    discussion   and   history   of 

pers    Chib    v.    Atchison.    T.    &    S.  the    Texas    common    point    terri- 

F.   Ry.   Co.,   12   I.   C.    C.   351,   .365.  tory   and   a    comparison   with   the 

.\lthough     when     such     grouping  transcontinental  group,  see  Texas 

results    in     unjust    discrimination  Common   Point   Case.  26   I.   C.   C. 

it    will     be      changed.      Kaufman  528.   529. 

Commercial   Club   v.  T.    &   N.   O.  "^  Victor   Manufacturing   Co.   v. 

R.  Co.,  31  I.  C.  C.  161.  Southern    Ry.    Co..    27    I.    C.    C. 

'"^  Mitchell  V.  Atchison.  T.  &  S.  661.   663. 
F.    Ry.    Co.,    12    I.    C.    C.    324.    325. 


§  107.]  Must  Be  Reasoxadle.  191 

ing  section  have  been  applied  by  the  Commission  to  cases  where 
a  more  or  less  contiguous  territory  is  given  the  same  rate  to  the 
markets.  In  speaking  of  such  system  already  in  existence  the 
Commission  said  : 

"When  the  United  States  Government  transports  a  package 
10  miles  for  one  citizen  for  10  cents,  while  it  charges  his  neigh- 
bor the  same  amount  for  transporting  a  like  parcel  3,000  miles, 
a  clear  discrimination  is  made,  but  it  is  a  discrimination  of  that 
character  which  by  universal  consent  is  in  the  public  interest. 
So,  here,  it  is  by  no  means  certain  that  these  postage-stamp  rates 
as  applied  to  the  distribution  of  the  products  of  the  Pacific  coast 
states  are  not  upon  the  whole  for  the  general  public  good.  Un- 
der this  system  the  producers  upon  the  Pacific  coast  are  given 
the  widest  possible  market  for  their  products ;  the  carriers  ob- 
tain a  certain  amount  of  long-distance  business  at  remunerative 
rates,  which  they  would  not  otherwise  have ;  the  freight  rate 
does  not  so  far  enter  into  the  cost  of  these  articles  to  the  con- 
sumer that  any  noticeable  burden  is  imposed  upon  any  section 
of  the  country.  If  this  Commission  were  required  to  establish 
a  reasonable  schedule  of  rates  for  the  transportation  of  citrous 
fruits  from  southern  California  to  eastern  destinations,  we  should 
not  feel  at  liberty  to  put  in  this  blanket ;  but  to  establish  graded 
rates  at  this  time  upon  lemons  would  be  to  break  up  this  rate 
system  which  is  highly  satisfactory  to  all  parties  concerned,  and 
while  the  action  of  the  court  may  in  the  end  compel  us  to  do 
this,  we  feel  that  we  can,  for  the  present,  properly  leave  this 
situation  as  it  is."  ^^*- 

The  rates  resulting  from  this  system  of  rate-making  must,  of 
course,  be  reasonable  and  not  unjustly  or  unduly  discrimina- 
tory.^^^  The  system  has  its  irregularities  at  best,  but  there  are 
reasons  why,  at  least  until  a  more  scientific  basis  of  rate-making 
is  possible,  it  should  be  tolerated,  l^n  giving  such  reasons,  the 
Commission  has  said : 

"In    transportation    of    low-grade    commodities   that   move   in 

"'Arlington   Heights   Fruit   Ex-  Commerce    Court   No.   61,   p.   537. 

change  v.   Southern    Pac.    Co..  22  "^  Sun    Company   v.    Indianapo- 

I.  C.  C.  149,  1.56;  order  sustained  lis   Sou.   R.    Co.,   22   I.    C.    C.   194. 

by    Commerce    Court,    Atchison,  197;    Clyde   Coal    Co.  v.   Penns5'l- 

T.     &   S.    F.    Ry.    Co.    V.     United  vania  R.  Co.,  23  I.  C.  C.  135. 
States,     203      Fed.      56.      Opinion 


192  Charges  bv  Common  Carriers  [§  108. 

bulk  and  in  large  quantities  it  is  a  long  established  custom  to 
group  or  blanket  a  number  of  stations  or  a  large  expanse  of  ter- 
ritory. Such  rate  adjustments  necessarily  to  some  extent  dis- 
regard distances.  If  strictly  distance  rates  were  applied  to  grain 
moving  from  points  of  origin  it  is  apparent  that  at  a  certain  dis- 
tance from  a  market  that  is  prepared  to  purchase  the  surplus  the 
rate  would  be  prohibitive."  ^^- 

In  prescribing  rates,  the  Commission  has  adopted  a  system  of 
zones  "as  an  appropriate  solution"  of  a  particular  rate  situa- 
tion.^^^  The  courts  recognize  that  the  Commission  has  the  juris- 
diction to  determine  the  effect  of  the  custom  of  the  carriers  in 
making  groups  and  zones. ^^^  It  is  interesting  to  note  that  in 
prescribing  parcel  post  rates,  the  postage  stamp  system  was  aban- 
doned to  an  extent  and  zone  rates  applied. 

§  108.  Basing  Point  System. — What  this  system  is  and  the 
attitude  of  the  commission  thereon  can  not  be  better  stated  than 
by  using  the  language  of  the  commission  itself.  In  Board  of 
Trade  of  Hampton  v.  Nashville,  Chattanooga  &  St.  L.  R.  Co.,^^^ 
it  was  said  by  ^^Ir.  Commissioner  Clements : 

"As  stated  in  our  finding  of  fact,  through  rates  made  in  this 
way — that  is,  composed  of  rates  to  "basing  points"  and  local 
rates  back — are  in  pursuance  of  what  is  known  as  the  "basing- 
point"  system  of  rate-making,  which,  according  to  the  evidence 
of  the  witness  (Cutler),  prevails  "throughout  the  southern  ter- 
ritory. This  system  has  been  heretofore  several  times  discussed 
and  disapproved  by  the  commission.  Re  Louisville  &  N.  R.  Co., 
1  I.  C.  C.  Rep.  84.  85.  1  Inters.  Com.  Rep.  2^7:  ^lartin  v.  Chi- 
cago, B.  &  O.  R.  Co..  2  I.  C.  C.  Rep.  2?,  46,  47,  2  Inters.  Com. 

'^'  Kansas    City   Transp.   Bureau  ^"*  Int.    Com.    Com.    v.    Chicago, 

V.  Atchison.   T.'&   S.   F.   Ry.   Co.,  R.  I.  &  P.  Ry.  Co.,  218  U.  S.  88, 

16   I.   C.   C.   195,  204.     For  typical  54   L.    Ed   946.   30   Sup.    Ct.   651. 
grouping,  see  Ferguson  Saw  iMill  "'  Board  of  Trade  of  Hampton 

Co.  V.  St.  Louis,  I.  AI.  &  S.  Ry.  v.  Nashville,   C.  &  St.  L.  R.  Co., 

Co.,     18    I.     C.    C.    396,     39S:     Re  8  I.   C.   C.  503,  520.  521,  522.     See 

Transportation    of    Wool.    Hides  also   Board   of  Trade   of  Dawson 

and    Pelts,    23    I.    C.    C.    151,    164  v.  Central  of  Ga.  Ry.  Co.,  S  I.  C 

(coal);  Transportation  Bureau  of  C.  142.     Competition  at  one  place 

Wichita  v.  St.  Louis,  L  M.  &  S.  may    justify    a    different    rate    to 

Ry.  Co.,  23  L  C.  C.  679.  680.  another,   Roberts   Cotton  Oil   Co. 

'=^  Pacific      Creamery      Co.      v.  v.   Illinois   C.  R.   Co.,  21   I.   C.   C. 

Atchison,  T.   &  S.  F.  Ry.   Co.,  29  248. 
I.  C.  C.  405,  408,  and  cases  cited. 


§  108.]  Must  Be  Reasonable.  193 

Rep.  32:  Re  Tariffs  and  Classifications  of  A.  &  W.  P.  R.  Co.,  3 
I.  C.  C.  Rep.  19,  24,  25,  46-49,  2  Inters.  Com.  Rep.  461. 

"Under  this  system,  where  the  haul  is  through  the  basing 
point  to  a  point  beyond,  the  rate  to  the  latter  is  the  through  rate 
to  the  basing  point  plus  the  local  rate  from  the  basing  point  on 
and  where,  as  in  the  present  case,  the  haul  is  to  an  intermediate 
point,  the  rate  to  the  intermediate  point  is  the  rate  for  the  haul 
through  such  intermediate  point  to  the  basing  point  plus  the  local 
rate  back  over  the  same  Hne.  In  the  former  case,  the  haul  is 
not  treated  as  a  continuous  haul  through  the  basing  point  to 
the  point  beyond,  but  as  two  distinct  hauls ;  one  a  through  haul 
to  the  basing  point,  and  the  other  a  local  haul  from  the  basing 
point  to  the  point  beyond ;  and  in  the  latter  case,  not  as  a  through 
haul  to  the  intermediate  point,  but  as  a  haul  through  the  inter- 
mediate point  to  the  basing  point  beyond  plus  a  local  haul  back. 
Local  hauls,  as  is  well  known,  are  much  more  expensive  to  the 
carrier  per  mile  than  long  through  hauls,  or  any  proportion  of 
such  through  hauls.  Therefore  local  rates  are  properly  made 
much  higher  for  the  same  distance  than  through  rates,  and  hence 
the  charge  of  a  local  rate  for  a  part  of  a  through  haul,  when 
the  extra  expense  of  a  local  haul  has  not  been  incurred,  is  prima 
facie  excessive.  Augusta  Southern  R.  Co.  v.  Wrightsville  &  T. 
R.  Co.,  74  Fed.  Rep.  522. 

"It  is  a  significant  fact  that  the  result  of  this  system  of  rate- 
making  is  to  enable  the  basing-point  merchants  to  compete  with 
the  local  merchants  of  surrounding  localities  at  their  own  doors 
on  equal  terms,  while  the  latter  are  debarred  from  such  compe- 
tition with  the  former,  and  as  to  territory  intermediate  between 
the  basing  points  and  surrounding  localities,  merchants  at  the 
basing  points  are  given  such  an  advantage  in  rates  as  to  enable 
them  to  undersell  merchants  at  surrounding  localities,  and  drive 
them  out  of  the  "jobbing  business"  in  such  intermediate  terri- 
tory as  the  testimony  shows  has  been  the  result  in  the  present 
case.  The  direct  tendency  and  almost  invariable  outcome  of  the 
system  is  that  basing  points  are  built  up  and  flourish  at  the  ex- 
pense of  surrounding  localities.  The  building  up  of  one  locality 
at  the  expense  of  another,  by  rates  favoring  the  former  and  dis- 
criminating against  the  latter,  was  luidoubtedly  one  of  the  prin- 
cipal evils  which  the  act  to  regulate  commerce  was  designed  to 
remedy,  and  it  would  seem  that  due  allowance  might  and  should 


194 


Charges  by  Common  Carriers 


109. 


be  made  for  the  effect  of  competition  without  defeating  the  ob- 
ject of  the  law." 

The  system  of  making  the  rate  to  the  point  beyond  the  full 
local  from  the  basing  point  was  abandoned,  by  the  carriers  and 
a  system  of  dififerentials  or  arbitraries  over  the  basing  point  es- 
tablished. Even  this,  when  resulting  in  discrimination,  is  illegal 
and  the  principle  was  announced  by  the  Commission  that  "rates 
to  the  basing  points  should  bear  some  reasonable  relation  to  the 
total  distances  involved."  ^^^  In  adjusting  rates  under  the 
amended  fourth  section  of  the  act,  the  basing  point  system  was 
practically  destroyed  by  the  Commission. i^' 

§  109.  Same  Subject — Breaking  Rates. — It  has  been  the 
system  adopted  by  the  carriers  in  different  sections  of  the  coun- 
tr}'  to  make  rates  to  a  river  crossing  and  thence  to  the  point  of 
destination,  the  through  rate  being  a  combination  of  the  two. 
In  some  places  this  system,  called  the  rate  breaking  system,  is 
applied  at  inland  points  although  "such  an  adjustment  is  unusual, 
because  it  is  at  points  and  on  the  banks  of  rivers,  where  a  trans- 
fer is  necessary,  that  rates  ordinarily  break."  And  "to  have 
rates  break  at  a  particular  point  is  not  an  inherent  right."  ^^^ 
While  the  system  of  breaking  rates  at  particular  points  may  not 
be  the  best,  the  Commission  can  not  at  once  overcome  such  a 
system  but  can,  wdien  necessary  to  prevent  discrimination,  control 
this  method  of  rate-making.  Speaking  of  the  system  in  a  case 
where  the  complainants  insisted,  "that  the  system  of  basing 
rates  to  the  Alissouri  River  cities  and  points  beyond  upon  the 
Mississippi    River    crossings    is    improper."    'Sir.    Commissioner 


'''Board  of  Trade  of  Carroll- 
ton  V.  Central  of  Ga.  Ry.  Co.,  28 
I.  C.  C.  154.  See  also  Mayor  and 
Council  of  Boston,  Ga.  v.  Atlan- 
tic C.  L.  R.  Co.,  24  I.  C.  C.  50: 
City  of  Montezuma  v.  Central  of 
Ga.  Ry.  Co.,  28  I.  C.  C.  280; 
Town  of  Pelhani,  Ga.  v.  Atlantic 
C.  L.  R.  Co.,  28  I.  C.  C.  433; 
Mayor  and  Council  of  Douglas, 
Ga.  V.  Atlanta,  B.  &  A.  R.  Co., 
28  I.  C.  C.  445;  Mayor  and  Coun- 
cil of  Vienna,  Ga.  v.  Georgia,  S. 
&  F.  Ry.  Co.,  28  I.  C.  C.  173; 
LaGrange      Chamber      of      Com- 


merce V.  Atlanta  &  W.  P.  R.  Co., 
28  I.  C.  C.  178;  Mayor  and  Coun- 
cil of  Tiftoji.  Ga.  V.  Louisville  & 
N.  R.  Co.,  9  I.  C  C.  160:  Co- 
lumbia Grocery  Co.  v.  Louisville 
&   N.   R.    Co.,    18    I.    C.    C.   502. 

'^^  Fourth  Section  Violations  in 
the   Southeast,   30   L   C.   C.   153. 

^  Mr.  Commissioner  Harlan, 
in  Commercial  Club  of  Duluth  v. 
Baltimore  &  O.  R.  Co.,  27  L  C. 
C.  639.  650.  657.  See  also  Sioux 
City  Terminal  Elevator  Co.  z'. 
Chicago,  M.  &  St.  P.  Ry.  Co., 
27    L    C.    C.    457.    463. 


§  109.]  Must  Be  Reasonable.  195 

Clark,  for  the  Commission,  said :  "We  are  not  impressed  with 
the  view  that  the  system  of  making  rates  on  certain  basing  lines 
should  be  abolished.  No  system  of  rate-making  has  been  sug- 
gested as  a  substitute  for  it,  except  one  based  upon  the  postage 
stamp  theory,  or  one  based  strictly  upon  mileage.  Either  of 
these  would  create  revolution  in  transportation  affairs  and  chaos 
in  commercial  affairs,  that  have  been  builded  upon  the  system  of 
rate-making  now  in  effect.  It  must  not,  however,  be  assumed  that 
a  basing  line  for  rates  may  be  established  and  be  made  an  im- 
passable barrier  for  through  rates,  or  that  cities  or  markets  lo- 
cated at  or  upon  such  basing  line  have  any  inviolable  possession 
of,  or  hold  upon,  the  right  to  distribute  traffic  in  or  from  the 
territory  lying  beyond.  Development  of  natural  resources,  in- 
crease in  population,  growth  of  manufacturing  and  producing  fa- 
cilities, and  increased  traffic  on  railroads  create  changed  condi- 
tions which  may  warrant  changes  in  rates  and  in  rate  adjustments 
in  order  to  afford  just  and  reasonable  opportunity  for  interchange 
of  traffic  between  points  of  production  and  points  of  large  con- 
sumption." ^"^  The  order  of  the  Commission  in  the  case  in  which 
the  above  announcement  was  made  coming  before  the  Supreme 
Court,  this  declaration  was  quoted  by  the  court  and,  replying 
to  the  contention  that  the  Commission  had  adopted  illegal  prin- 
ciples in  arriving  at  its  conclusions  effective  in  the  order,  the 
Court  said :  "As  we  have  said,  the  Commission  is  the  tribunal 
that  is  intrusted  with  the  execution  of  the  interstate  commerce 
law,  and  has  been  given  very  comprehensive  powers  in  the  in- 
vestigation and  determination  of  the  proportion  which  rates 
charged  shall  bear  to  the  services  rendered,  and  this  power  exists, 
whether  the  system  of  rates  be  old  or  new.  If  old,  interests  will 
have  probably  become  attached  to  them  and,  it  may  be,  will  be 
disturbed  or  disordered  if  they  be  changed.  Such  circumstance 
is,  of  course,  proper  to  be  considered  and  constitutes  an  element 
in  the  problem  of  regulation,  but  it  does  not  take  jurisdiction 
away  to  entertain  and  attempt  to  resolve  the  problem.  And  it 
may  be  that  there  can  not  be  an  accommodation  of  all  interests  in 
one    proceeding."  i-"'      The    opinion    of    the    Court    refers    to 

''"  Burnham.      Hanna,      Hunger  "°  Int.    Com.    Com.   v.    Chicago, 

Dry  Goods  Qo.'v.  Chicago,  R.  I.  R.  I.  &  P.  Ry.  Co..  218  U.  S.  88, 

&    P.    Ry.    Co.,    14    I.    C.    C.    299,  107,    108,    110,    54    L.    Ed.    946,    30 

303,  313.  Sup.  Ct.  651,  reversing  the  lower 


196  Charges  by  Common  Carriers  [§  110. 

the  force  "due  to  the  judgments  of  a  trilmnal  appointed  by  law 
and  informed'  by  experience."  ^^^ 

§  1 10  Comparisons  between  Different  Lines  as  a  Means 
of  Determining  Correct  Rates. — It  is  competent  to  compare 
rates,  distances  and  general  conditions  on  one  road  with  those 
on  another  when  considering  the  adjustment  of  rates,  but  in 
connection  therewith  all  other  factors  which  enter  into  the  ques- 
tion of  what  constitutes  a  reasonable  rate  must  be  considered. ^^- 
Rates  should  be  relatively  as  well  as  absolutely  reasonable,  and 
a  locality  not  widely  dissimilar  from  another  is  prima  facie  en- 
titled to  the  same  rate.^^-^  When  the  circumstances  and  condi- 
tions are  substantially  dissimilar,  comparison  of  rates  are  value- 
less.i"*^  Comparisons  of  "transportation  rates  in  force  on  lines 
of  rival  companies  or  on  different  branches  or  lines  of  the  same 
company  have  a  bearing  upon  and  are  entitled  to  consideration  in 
connection  with  the  question  of  reasonable  charges  for  transpor- 
tation services  rendered  under  like  conditions."  ^^^  And  as  said 
by  Mr.  Commissioner  Harlan :  ^'^'^ 

"But  while  the  revenue  per  ton  per  mile  over  other  routes  on 
other  lines  and  to  other  destinations  is  often  suggestive  in  ar- 
riving at  a  proper  estimate  of  the  reasonableness  of  a  rate  over 
a  route  complained  of,  it  is  by  no  means  conclusive.     Varying 

court  in   Cliicago,  R.   I.  &  P.   Ry.  "'Manufacturers'    and    Jobbers' 

Co.  V.   Int.   Com.   Com.,   171   Fed.  Union    v.    Minneapolis    &    St.    L. 

680,   and   sustaining   the   Commis-  R.   Co.,   4   I.   C.   C.  79,   3   I.   C.   R. 

sion  in  Burnham,  Hanna,  Munger  115. 

Dry  Goods   Co.  v.   Cliicago,   R.   I.  ^"  Business  Men's  Asso.  v.  Chi- 

&  P.   Ry.   Co.,   ]4   I.   C.   C.  299.  cago  &  N.  W.   R.   Co.,  2  I.  C.   C. 

"Illinois  C.  R.  Co.  z:  Int.  Com.  73,  2  I.  C.  R.  48;  Evans  v.  Union 
Com.,  206  U.  S.  441,  454,  51  L.  Pac.  R.  Co.,  6  I.  C.  C.  520;  Mar- 
Ed.  1128,  27  Sup.  Ct.  700,  citing  ten  7>.  Louisville  &  N.  R.  Co.,  9 
Louisville  &  N.  R.  Co.  v.  Behl-  L  C.  C.  581,  597,  12  L  C.  C.  223. 
mer,  175  U.  S.  64S,  44  L.  Ed.  "'  Morrell  v.  Union  Pacific  R. 
309,  18  Sup.  Ct.  502;  East  Ten-  Co.,  6  L  C.  C.  121,  4  L  C.  R.  469. 
nessee,  Va.  &  Ga.  Ry.  Co.  v.  Int.  See  discussion  of  question  in 
Com.  Com.,  181  U.  S?  1,  27,  45  Freight  Bureau  of  Cincinnati  v. 
L.   Ed.  719,  21   Sup.   Ct.   516.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co., 

"'Cannon    v.    Mobile    &    O.    R.  6    L    C.    C.    195,    4    L    C.    R.    592. 

Co.,  11  L  C.  C.  537,  543;   Lincoln  610,    611. 

Creamery    Co.   v.   Union    Pac.   R.  ""  Dallas      Freight     Bureau     f. 

Co.,    5    L    C.    C.    156,    3    L    C.    R.  Gulf  C.  &  S.  F.  Ry.  Co.,  12  L  C. 

794;     Re    Tariffs    of    Transconti-  C.  223,  cited  and   followed.   Clark 

nental    Lines,    2    L    C.    C.    324,    2  &   Co.   v.    Buffalo   &   S.    Ry.    Co., 

L    C.   R.   203.  18    L    C.    C.   380. 


§  110.]  •      ^lusT  Be  Reasonable.  197 

conditions  existing  on  different  lines  must  of  necessity  justify  dif- 
ferences in  rates  for  hauls  of  the  same  distance.  The  real  ques- 
tion in  any  such  complaint  is  the  reasonableness  of  the  partic- 
ular rate  on  the  particular  line  between  the  points  in  question.  In 
testing  such  a  rate  the  rates  on  the  same  or  adjacent  lines  in  the 
immediate  territory  where  the  same  conditions  exist  are  of  much 
greater  significance  and  afford  a  much  more  accurate  basis  for 
our  action." 

A  mere  comparison  of  the  rates  attacked  with  rates  in  other 
parts  of  the  country  is  not  sufficient  evidence  upon  which  the 
commission  may  condemn  a  rate. 

Xor  does  the  mere  fact  that  a  lower  rate  is  in  force  by  a  com- 
peting line  "of  itself  establish  the  unreasonableness"  of  the  rate 
by  the  line  under  investigation. i^" 

As  stated  by  the  Commission :  '"There  is  no  evidence  that  the 
rate  charged  was  unreasonable,  except  that  there  was  a  lower 
rate  to  a  nearby  point  via  another  line.  This  of  itself  has  never 
been  held  sufficient  to  establish  that  the  rate  over  a  particular  line 
is  unreasonable."  ^•^-  ^^'hile  this  is  true,  there  is  some  probative 
value  in  evidence  showing  that  between  the  same  points  there  is 
another  line  over  which  a  lower  rate  exists,  and  this  evidence 
when  supported  by  the  fact  that  the  rate  complained  of  yields  a 
comparatively  high  rate  per  ton  mile  may  justify  a  finding  that 
such  rate  is  unreasonable. ^^^ 

Comparing  one  rate  with  another  is  but  a  method  of  arriving 
at  the  fair  value  of  a  particular  service.  The  underlying  prin- 
ciple applied  in  making  such  comparisons  is  the  same  as  is  used 
when  the  market  value  of  property  is  sought  to  be  determined 
by  comparisons  with  the  value  of  other  property  similarly  sit- 
uated, and  which  value  is  indicated  by  prices  that  have  been  paid 
therefor  in  the  open  market.  The  method  of  judging  rates  by 
comparison  is  one  that  has  been  applied  since  tribunals  have  con- 
sidered the  question  of  what  are  reasonable  charges. ^^^ 

"■  Delray   Salt   Co.  z:   Michigan  "'  Parfrey  v.  Chicago,  M.  &  St. 

Cent.   R.   Co.,   is   I.   C.   C.  24.5.  P.  Ry.  Co.,  20  I.  C.  C.  104. 

"'  Snyder-Malone-Donahue  Co.  '^  Bacon's  Abridgment,  p.  243, 
V.  Chicago,  B.  &  Q.  R.  Co.,  18  I.  title  Carriers.  1  Com.  Dig.  C, 
C.  C.  498,  499.  Also  see  Pankey  citing  1  Sid.  36;  Hutchinson  on 
&  Holmes  v.  Central  Xew  Eng-  Carriers  (2d  Ed.)  Sec.  447,  4  El- 
land  Ry.  Co..  IS  I.  C.  C.  578.  liott    on    Railroads    Sees.    15G0    ct 

seq. 


198  Charges  by  Common  Carriers  [§  111. 

§  111.  Car  Load  and  Less  than  Car  Load  Movements  as 
Affecting  the  Rate. — It  has  been  hereinbefore  shown  that  cost 
and  vahie  of  service  both  enter  into  the  question  of  what  consti- 
tutes a  reasonable  rate.  "The  hazard  involved,"  ^^^  must  also  be 
considered  in  determining  that  question.  It  is  indisputable  that  it 
costs  more  per  hundred  pounds  to  haul  freight  in  less  than  car 
loads  than  it  costs  to  haul  the  same  freight  in  car  load  quantities. 
Among  other  reasons,  this  is  true  because  the  shipper  loads  and 
the  receiver  or  consignee  unloads  car  load  shipments,  while  the 
carrier  loads  and  unloads  articles  shipped  in  less  than  car  loads. 
Usually  a  car  load  shipment  is  sealed  by  the  consignor  and  un- 
sealed by  the  consignee,  and  in  the  absence  of  the  seals,  show- 
ing that  it  has  been  tampered  with,  or  that  the  car  is  in  any  way 
defective,  there  can  be  no  such  thing  as  a  concealed  loss  charge- 
able to  the  carrier.  The  clerical  expense  of  billing  and  the  ex- 
pense of  delivering  is  much  less  in  car  load  than  in  less  than 
car  load  shipments,  and  the  loss  and  damage  on  less  than  car 
load  shipments  is  greater  than  on  car  load  movements.  This 
principle  is  recognized  by  the  commission.  In  the  Thurber 
case  ^^2  the  commission  said :  "It  is  a  sound  rule  for  carriers  to 
adapt  their  classifications  to  the  laws  of  trade.  If  any  article 
moves  in  sufficient  volume,  and  the  demands  of  commerce  will 
be  better  served,  it  is  reasonable  to  give  it  a  car  load  classification 
and  rate.  The  car  load  is  probably  the  only  practicable  unit  of 
quantity." 

While,  as  stated  by  the  Commission  in  the  Thurber  case,  supra, 
shippers  usually  load  and  unload  car  load  freight,  such  is  not  the 
imiversal  custom.  Speaking  of  the  practice,  the  Commission 
has  said :  "\\'hile  there  is  every  reason  for  holding  that  the 
shipper  should  load  and  unload  freight  handled  as  a  strictly  car 
load  proposition,  there  seem  to  be  many  reasons  why  with  re- 
spect to  commodities  handled  by  the  package,  the  carrier  should 
load  and  unload  even  though  the  rate  applied  may  be  the  car 

"^  Kindel     v.     Adams     Express  Hansen  Co.  v.  Southern  Pac.  Co., 

Co..  13  I.  C.   C.  475,  485.  IS    I.    C.    C.    234.    237;    when    the 

'''^Thurber  v.   New  York    C.    &  carrier     does    unload    or    load     it 

H.    R.    R.    Co..   3    I.    C.    C.   473.   2  must    be   without    discrimination, 

I.   C.  R.  742,  752.     See  also  Har-  Empire  Fuel  Co.  v.  Pennsylvania 

vard  V.  Pennsylvania  Co.,  4  I.   C.  R.   Co..   16   I.  C.   C.  219,  224. 
C.    212,    3    I.    C.    R.    257;    Schultz- 


§  112.]  Must  Be  Reasonable.  199 

load ;  and  such  we  think  has  been  the  usual  practice  in  the  past. 
Our  conclusion,  therefore,  is  that  no  general  and  invariable  rule 
can  be  laid  down  applying  to  all  business  which  takes  a  car  load 
rate."  i^s 

§  112.  Establishing  Car  Load  Rates. — While  the  principle 
of  a  difiference  between  car  load  and  less  than  car  load  shipments 
is  recognized  by  the  commission,  and  while  to  prevent  discrimina- 
tion, it  could  prescribe  such  a  differential,  that  tribunal  is  dis- 
inclined to  exercise  such  power.  Mr.  Commissioner  Clements, 
voicing  the  opinion  of  the  commission,  said :  ^^^ 

"The  commission  has  held  that  differentiation  by  the  carriers 
of  carloads  from  less  than  car  loads  in  the  application  of  rates 
may  be  warranted  under  certain  conditions.  Here,  however,  we 
are  asked  to  enter  an  affirmative  order  establishing  a  differential. 
What  would  be  the  effect  upon  all  the  business  interests  involved 
in  this  traffic  should  the  commission  take  such  action?  No  doubt 
its  effect  upon  the  jobbers  at  southeastern  points  would  be  bene- 
ficial ;  traffic  would  move  into  the  southeast  in  such  manner  as  to 
give  the  longest  possible  haul  in  car  loads  to  the  local  dealers, 
who,  securing  these  long  haul  car  load  rates,  would  be  the  bene- 
ficiaries. Other  classes  who  would  be  affected  by  the  change 
would  be  the  small  dealers  and  consumers,  and  it  appears  that 
the  necessary  operation  of  such  a  change  would  be  to  cut  off 
these  classes  from  purchasing  in  small  quantities  at  Nashville 
and  Ohio  River  points  and  compel  them  to  deal  with  jobbers  in 
their  immediate  vicinity,  who  would  purchase  in  large  enough 
quantities  to  secure  the  benefits  of  the  lower  rates  on  the  long 
car  load  haul  from  the  Ohio  River  and  Nashville.  The  entire 
record  points  to  the  fact  that  a  dift'erential  on  this  traffic  Avould 
have  the  effect  of  enhancing  the  price  of  those  products  to  the 
consumer.     *     *     * 

"A  railroad  can  not  be  compelled,  as  prayed  in  this  case,  or 
even  permitted  to  adopt  a  system  of  rate  making  which  enables 
a  large  dealer  to  drive  a  smaller  dealer  out  of  the  market.  We 
must  have  some  other  motive  upon  which  to  act  in  a  matter  of 
this  kind  than  that  the  trade  of  a  particular  community  is  a 
vested  right  belonging  to  any  particular  class  in  that  community. 

'"Wholesale    Fruit    &    Produce  "'Duncan     v.    Nashville,    C.     & 

Assn.  V.  Atchison.  T.  &  S.  F.  Ry.       St.   L.   Ry.    Co.,    IG    I.    C.    C.   590. 
Co.,  14  I.  C.   C.  410,  419.  593.    594,    595. 


200  Charges  by  Common  Carriers  [§  113. 

We  are  not  permitted  so  to  narrow  our  view  of  all  the  inter- 
ests involved  as  to  look  only  to  the  interests  of  a  particular  class 
in  the  community,  and  this  for  the  sole  purpose  of  vesting  in  that 
class  what  they  claim  to  be  their  inherent  rights,  more  especially 
when  the  enjoyment  thereof  is  to  be  at  the  expense  of  the  com- 
munity at  large." 

The  Commission  has,  w^here  any  quantity  rates  were  in  force, 
distinguished  the  Duncan  case,  supra,  and  required  that  car 
load  rates  be  established. i°^ 

§  113.  Same  Subject — Rule  in  Duncan  Case  Criticized. — 
With  great  deference  to  the  learned  lawyer  and  experienced 
commissioner  who  wrote  the  opinion  in  the  Duncan  case,  it  is 
submitted  that  he  failed  to  give  due  effect  to  the  rule  of  cost  of 
service.  It  does  not  necessarily  follow  that  a  higher  rate  on 
less  than  car  loads  increases  the  price  to  the  consumer,  and  if 
it  did,  it  does  not  necessarily  follow  that  one  man  should  re- 
ceive for  his  money  a  greater  service  than  another  receives  for 
the  same  amount  of  money.  Carriers  must  ordinarily  receive 
from  the  total  of  all  commodities  transported  by  them  enough 
to  pay  all  operating  expenses  and  a  fair  return  on  the  invest- 
ment. If  fifty  per  cent  of  these  commodities  are  transported  in 
less  than  car  load  lots,  it  is  fair  to  say  that  more  than  sixty 
per  cent  of  the  cost  of  all  transportation  is  caused  by  this 
moieVy'  and  less  than  forty  per  cent  by  the  half  transported  in 
car  lots.  But  while  the  car  load  shipper  costs  the  carrier  but 
forty  per  cent  of  the  transportation  charge,  he  pays  fifty  per 
cent  thereof.  If  the  car  load  shipper  paid  only  the  forty 
per  cent  the  maximum  which  he  should  pay  and  the  less  than 
car  load  shipper  should  pay  his  sixty  per  cent  and  more,  the 
total  transportation  charges  paid  by  the  consumer  would  be 
the  same  that  he  pays  when  there  is  no  differential  and  there 
would  be  no  discrimination.  The  jobber  is  sometimes  regarded 
as  a  mere  parasite,  but  this  view  of  his  function  is  incorrect. 
He  fills  an  important  position  in  commerce,  ^^'ithout  him,  or 
some  other  equally  eft'ective  agency,  the  producer  and  the  con- 
sumer could  not  be  got  together.  The  Kansas  wheat  farmer 
could  never  market  his  wheat  directly  by  dealing  with  the  Georgia 

'=' Mutual  Rice  Trade  &  Devel-  See  also  Taylor  Dry  Goods  Co. 
opment  Assn.  v.  International  &  z:  M.  P.  Ry.  Co.,  2S  I.  C.  C.  205. 
G.  N.  R.  Co.,  23  I.  C.  C.  219,  224. 


§  113.]  Must  Be  Reasonable.  201 

consumer.  There  must  be  one  or  more  intermediaries  who  col- 
lect the  product  and  distribute  it  to  the  consumer.  He  who  col- 
lects the  grain  at  the  primary  markets  of  Kansas  City,  St.  Louis, 
Omaha,  Chicago,  and  perhaps  other  cities,  the  jobber  at  Nash- 
ville, Atlanta  and  other  cities  and  the  retail  dealer  who  sells  di- 
rect to  the  consumer,  each  performs  a  necessary  service  in  en- 
abling the  producer  to  sell  and  the  consumer  to  buy.  When  a 
producer  controls  all,  or  a  large  part,  of  a  commodity,  he  may 
himself  perform  all  these  intermediary  services,  but  such  serv- 
ices must  be  performed  by  some  agency.  The  agencies  perform- 
'ing  this  necessary  service  will  be  compelled  by  the  laws  of  trade 
not  to  charge  more  than  is  reasonable  for  the  service.  It  is  not 
a  question  of  a  large  dealer  driving  out  the  small  dealer,  but  a 
question  of  those  intermediaries  paying  only  for  what  service 
they  obtain  from  the  carriers.  The  total  transportation  charges 
which  the  consumer  pays  are  not  increased,  but  decreased  and 
these  charges  are  equitably  distributed.  The  justice  of  a  car  load 
and  less  than  car  load  differential  is  shown  by  the  general  appli- 
cation by  the  carriers  themselves  of  such  differential. 

In  the  Western  Classification  case,^-'*'"'  the  rule  for  determining 
when  a  carload  rating  should  be  established  was  stated  as  fol- 
lows :  "A  carload  rating  should  be  established  for  a  com- 
modity when  that  commodity  can  be  offered  for  shipment  in 
carload  quantities,  unless  public  interests  or  other  valid  consid- 
erations require  the  contrary.''  In  a  subsequent  case  this  rule 
was  quoted,  the  Duncan  and  other  cases  cited,  and  it  was  said : 
"The  Commission  has  always  recognized  the  propriety  of  car- 
load ratings.  It  has  in  many  cases  established  carload  and  less 
than  carload  rates  upon  the  same  commodity,  but  whether  a  car- 
load rating  should  be  accorded  in  a  particular  instance,  depends 
not  only  upon  whether  that  commodity  is  offered  for  shipment 
in  carload  quantities,  but  also  upon  other  considerations."^^''' 
What  the  Commission  meant  is,  that  when  commercial  usage 
makes  a  carload  of  a  particular  commodity  a  greater  quantity 
than  is  ordinarily  used  by  the  average  shipper,  the  advantages  to 
be  obtained  by  the  lower  cost  of  movements  in  carloads  must  yield 
to  the  customs  of  trade.     Somewhat  more  liberal  was  the  rule 

'""Re    Suspension    of    Western  '"Taylor  Dry  Goods  Co.  v.  M. 

Classification  No.  51,  25  I.  C.  C.  P.  Ry.  Co.,  28  I.  C.  C.  205,  207, 
442,    446.  208,  209. 


202  Charges  BY  Common  Carriers  [§  114. 

applied  in  permitting  the  carriers  to  increase  the  minimum  car 
load  for  grain  products. ^^^  The  round  bale  cotton  case  ^^^  was 
based  upon  a  special  situation,  and  in  declining  to  fix  a  carload 
rating  which  would  have  applied  only  to  cotton  compressed  to  a 
stated  density,  it  can  not  be  said  that  the  Commission  has  deter- 
mined that  in  no  case  will  it  require  the  establishment  of  car 
load  ratings. 

§  114.  Same  Subject — Proper  Differential  Between 
Rates  on  Car  Load  and  Less  Than  Car  Load  Freight. — On 
this  subject  the  Commission  has  stated  the  rule  as  follows:  The 
"differential,  like  the  rate  itself,  should  be  fixed  with  a  view  to 
the  just  interests  of  all  parties  concerned.  *  *  *  In  fixing 
upon  a  rate  or  a  rate  adjustment  a  carrier  may  always  properly 
consider  the  cost  of  service,  and  that  factor  should  have  great 
influence  with  the  commission  in  passing  upon  the  reasonable- 
ness of  the'  carrier's  action.  If  it  actually  costs  these  carriers 
less  to  handle  this  transcontinental  freight  in  carloads  than  in 
less  than  carloads  we  ought  not  in  the  absence  of  a  controlling 
reason  to  the  contrary,  to  deny  the  carrier  the  right  to  make  a 
difference  in  its  tariff'  corresponding  to  the  diff'erence  of  ex- 
pense. The  defendant  carriers  have  somewhat  elaborately  es- 
timated the  relative  expense  of  carrying  this  freight  in  car- 
loads and  less  than  carloads.  The  nature  of  that  testimony 
fully  appears  in  the  statement  of  facts,  and  need  not  be  repeated. 
We  have  found  that  it  costs  transcontinental  carriers  approx- 
imately 50  per  cent  more  to  handle  transcontinental  traffic  in 
less  than  car  loads  than  in  carloads.  The  less  than  car  load  rate 
in  many  of  the  instances  called  to  our  attention  by  the  com- 
plainant exceeds  the  carload  rate  by  somewhat  more  than  50 
per  cent,  but  on  the  whole  we  are  inclined  to  think  that,  on  the 
average,  the  difference  between  carloads  and  less  than  carloads 
established  by  the  tariff  of  June  25,  1898,  does  not  generally,  if 
at  all  exceed  the  actual  difference  of  cost  in  the  service  ren- 
dered.i«o 

§  115.  Car  Load  Minima.— It  is  usual  for  the  carriers  to  pro- 

"' Western   Rate  Advance   case  ""Business     Men's     League     of 

1915,  35  I.  C.  C.  497.  St.  Louis  v.  Atchison,  T.  &  S.  F. 

""American   Round   Bale   Press  Ry.   Co.,  9  L  C.  C.  318,  358,  359. 

Co.  V.  A.  T.  &  S.  F.  Ry.  Co.,  32  See  Sec.  156,  post. 
L    C.   C.   458. 


§  116.]  Must  Be  Reasonable.  203 

vide  that  a  specified  weight  of  a  commodity  shall  be  required 
to  constitute  a  car  load  in  order  to  obtain  a  rate  different  from 
the  rate  on  the  same  commodity  moving  in  less  than  car  loads. 
This  minimum  must  be  reasonable  and  must  not  exceed  the  capac- 
ity of  the  car.  Where  no  minimum  was  established  the  Com- 
mission said : 

"The  absence  of  a  legally  established  minimum  car  load 
weight  suggests  the  inquiry  as  to  the  quantity  upon  which  a  ship- 
per might  claim  the  benefit  of  the  car  load  rate  in  preference  to 
the  less-than-carload  rate.  And  for  the  purpose  of  laying  down 
a  general  rule  we  hold  that  when  a  car  is  demanded  and  loaded 
by  the  shipper  and  is  tendered  and  otherwise  handled  as  a  car- 
load, and  no  minimum  carload  weight  is  legally  provided,  the 
carload  rate,  if  it  makes  less  than  the  1.  c.  1.  rate,  must  be  ap- 
plied on  the  actual  weight.  It  lies  in  the  power  of  a  carrier  to 
protect  its  revenue  by  fixing,  in  the  manner  provided  by  law, 
minimum  weights  to  be  applicable  under  its  published  carload 
rates.  If  it  fails  to  take  this  precaution  we  think  it  imposes  no 
hardship  upon  it  to  give  a  shipper  the  benefit  of  the  carload 
rate  on  the  actual  weight  of  the  shipment  tendered  as  a  carload, 
whether  it  be  more  or  less  than  an  ordinary  carload  quan- 
tity."i«i 

If  the  rate  is  for  a  carload,  the  greater  the  load  the  less  the 
rate  on  each  one  hundred  pounds,  and  the  less  the  load  the 
greater  the  rate  a  hundred.  So  "the  minimum  carload  weight 
is  a  factor  in  determining  the  carload  rate."  ^^^ 

§  116.  Train  Load  Rates. — The  car  load  is  a  reasonable  and 
practicable  unit  of  quantity  that  may  properly  be  adopted  in  de- 
termining rates.  Perhaps  logically  the  train  load  might  also 
be  considered,  but  in  the  actual  movement  of  commodities  the 
train  load  rarely  occurs,  and  to  adopt  as  a  unit  of  quantity  the 
train  load  would  benefit  very  few  shippers  and  would  discrim- 
inate against  a  large  number.  Practicable  units  must  be  ob- 
served. So  it  has  been  said  that  lower  rates  by  the  hundred 
pounds  for  train  loads  than  for  car  loads  should  not  be  estab- 

'""  Sunderland  Bros,  Co.  v.  Mis-  fjSO;     Kansas    City    Hay     Dealers 

souri,   K.   &  T.   Ry.   Co.,   18    I.   C.  Assn.    v.    Missouri    Pac.    Ry.    Co., 

C.  425.  426.  14    I.     C.     C.    597,.   603;    Western 

"^Georgia    Fruit     Exchange    v.  Rate  Advance  Case  1915,  35  I.  C. 

Southern  Ry.  Co.,  20  I.  C.  C.  623,  C.    497. 


204  Charges  by  Common  Carriers  [§  117. 

lished.^''"'  Applying  the  same  principle,  a  rate  on  one  hundred 
or  one  hundred  thousand  cars  should  not  be  less  by  the  car  than 
on  one  car.^'^'-' 

§  117.  Relation  of  Through  Rates  to  the  Sum  of  the 
Local  Rates. — In  December,  1906,  the  commission  adopted  and 
issued  to  all  railroads  the  following  ruling : 

"Reduction  of  Joint  Rate  to  Ecjual  Sum  of  Locals  (effective  De- 
cember 21,  1906).  Where  a  joint  rate  is  in  eft'ect  by  a  given 
route,  which  is  higher  between  any  points  than  the  sum  of  the 
locals  between  the  same  points,  by  the  same  or  any  other  route, 
and  such  joint  rate  has  been  in  eft'ect  thirty  days  or  longer,  such 
higher  joint  rate  may,  until  further  notice  from  the  commission, 
be  changed  by  reducing  the  same  to  the  sum  of  such  locals,  but 
not  otherwise,  upon  posting  one  day  in  advance  a  tarift"  of  such 
reduced  rate  and  mailing  a  copy  thereof  to  the  commission. 

Alany  informal  complaints  are  received  in  connection  with 
regularly  established  through  rates  which  are  in  excess  of  the 
sum  of  the  locals  between  the  same  points.  The  commission  has 
no  authority  to  change  or  fix  a  rate  except  after  full  hearing  upon 
formal  complaint.  It  is  believed  to  be  proper  for  the  commis- 
sion to  say  that,  if  called  upon  to  formally  pass  upon  a  case  of 
this  nature,  it  would  be  its  policy  to  consider  the  through  rate, 
which  is  higher  than  the  sum  of  the  locals  between  the  same 
points  as  prima  facie  unreasonable,  and  that  the  burden  of 
proof  would  be  upon  the  carrier  to  defend  such  higher  through 
rate." 

The  foregoing  administrative  order  of  the  commission  fur- 
nishes  a   general    rule   which  has    been    frequently    enforced. ^^^ 

^"^  Planters      Compress    Co.     v.  Hanna,    Hunger   Dry   Goods    Co. 

Cleveland,  C.  C.  &  St.  L.  Ry.  Co.,  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  14 

11  I.  C.   C.  382;   Paine  Bros.  Co.  I.  C.  C.  299;  Kindel  v.  New  York, 

V.  Lehigh   V.   R.   Co.,   7   I.   C.   C.  N.  H.  &  H.  R.  R.   Co.,  15   I.   C. 

218;    Richards    v.    Atlantic    C.    L.  C.  555;  Randolph  Lumber  Co.  v. 

R.  Co.,  23  L  C.  €.  239,  240.  Seaboard  A.  L.  Ry.  Co.,  13  I.  C. 

'"  Carr  z/.  Northern  Pac.  R.  Co.,  C.    601;    Milburn    Wagon    Co.    v. 

9  L  C.  C.  1,  14;  Woodward-Ben-  Lake  Shore  &  M.  S.  Ry.   Co.,  18 

net    Co.   V.   S.    P.   L.   A.    &   S.    F.  I.     C.  €.    144;    Windsor    Turned 

R.   Co.,  29  L  C.   C.   G64,  665,  and  Goods    Co.   v.    Chesapeake    &   O. 

cases  cited.  Ry.   Co.,  18   I.   C.   C.   162;  Wells- 

^°°  Laning-Harris   Coal  &  Grain  Higman    Co.   :•.   Grand   Rapids    & 

Co.  V.   Missouri  Pac.  Ry.   Co.,   13  I.  Ry.  Co..  19  L  C.  C.  487;  Web- 

I      C.     C.     148,     159;     Burnham,  ster    Grocery    Co.    v.    Chicago    & 


§  11 8. J  Must  Be  Reasonable.  205 

There  have  been  and  may  be  reasons  which  make  the  rule  in- 
appHcable.^*^ 

Carriers  may  not  avoid  the  application  of  the  general  prin- 
ciple by  making  different  minima  on  local  and  through  ship- 
ments.^^" The  amended  fourth  section  making  it  unlawful  "to 
charge  any  greater  compensation  on  a  through  rate  than  the 
aggregate  of  the  intermediate  rates  subject  to  the  provisions"  of 
the  act  to  regulate  commerce,  makes  statutory  the  prior  rule  fre- 
quently applied  by  the  Commission. 

"Penalty  rates"  which  means  charging  a  local  rate  as  part  of  a 
through  rate  for  the  purpose  of  compelling  a  shipper  to  use  the 
originating  carrier  for  the  total  haul  have  been  disapproved  by 
the  Commission. i*^^*" 

§  118.  Proportional  Rates. — A  proportional  rate  is  but  a 
part  of  a  rate  charged  for  the  haul  over  a  portion  of  the 
through  route.  In  recognition  of  the  fact  that  there  has 
been  paid  or  will  be  paid  another  or  subsequent  transporta- 
tion charge,  the  proportional  rate  is  usually  lower  than  the 
local  rate  for  the  same  haul.  That  such  proportion  may  be  less 
than  the  local  over  the  intermediate  line  is  but  an  application  of 
the  principle  that  usually  a  through  rate  is  less  than  the  sum  of 
the  locals.  It  is,  therefore,  obvious  that  there  is  nothing  illegal 
of  itself  in  a  proportional  rate,  although  such  rate  like  all  other 
rates  must  not  be  unreasonable  and  must  not  result  in  unjust 
discrimination  or  undue  preference. 

The  Commission  in  defining  and  stating  the  principles  appli- 
cable to  proportional  rates,  said : 

"A  proportional  rate  is  nothing  more  or  less  than  a  separately 
established  rate,  as  that  phrase  is  used  in  section  6  of  the 
amended  act,  applicable  to  through  transportation.     And  it  has 

N.  W.  Ry.  Co.,  19  I.  C.  C.  493;  Tile  Co.  v.  St.  Louis  &  S.  F.  Ry. 
and  ordinarily  the  through  rate  Co.,  12  I.  C.  C.  498,  499;  White 
should  be  somewhat  less  than  the  Bros.  v.  Atchison,  T.  &  S.  F.  Ry. 
continuation  of  locals,  Jubitz  v.  Co.,  17  I.  C.  C.  288;  Winona  Car- 
Southern  Pac.  Co.,  27  I.  C.  C.  44,  riage  Co.  v.  Pennsylvania  R.  Co., 
45;  Washington  Milling  Co.  v.  18  I.  C.  C.  3.34. 
Norfolk  &  W.  Ry.  Co.,  27  I.  C.  '"Lull  Carriage  Co.  v.  K.  &  S. 
C.  546,  549;  Appalachia  Lumber  Ry.  Co.,  19  I.  C.  C.  15,  16. 
Co.  V.  Louisville  &  N.  R.  Co.,  25  ""a  Mobile  Chamber  of  Com- 
L  C.  C.  193,  194.  merce  v.  M.  &  O.  R.  Co.,  32  1. 
'""  Coffeyville  Vitrified   Brick   &  C.    C.  272. 


206  Charges  by  Common  Carriers  [§  119. 

not  been  understood  either  by  the  Commission,  or  by  others  so 
far  as  we  are  informed,  that  a  separately  estabhshed  rate  can  be 
other  than  an  open  r-ate  available  to  all.  The  separately  estab- 
lished or  proportional  rate  is  simply  one  way  of  making  up  the 
through  charges  between  two  points ;  but  while  we  have  made 
no  criticism  and,  as  at  present  advised,  see  no  grounds  for  any 
criticism  of  proportional  rates  applicable  only  to  through  move- 
ments from  a  defined  territory  or  group  of  points,  we  have  never 
recognized  as  valid  and,  as  at  present  advised,  see  no  grounds 
upon  which  we  could  recognize  as  valid  a  proportional  rate 
limited  to  shipments  that  come  into  the  proportional  rate  point 
over  the  lines  of  a  particular  carrier.  Proportional  rates  lim- 
ited to  through  movements  from  defined  territory,  or  from  a 
group  of  points,  seem  to  form  a  proper  basis  for  making  up 
through  charges  for  transportation  from  those  points  and  that 
territory.  But  a  proportional  rate,  the  use  of  which  is  limited 
to  shipments  over  a  particular  line,  would  appear  to  be  a  rate 
that  discriminates  against  shippers  over  another  line."^'''' 

When  the  proportionals  are  unreasonable  the  Commission 
may  order,  and  has  ordered,  a  reduction  therein. 

Proportional  rates  should  as  a  rule  be  less  than  corresponding 
local  rates, ^''''  and  such  rates  have  a  value  when  they  promote 
and  preserve  wholesome  competition  between  producing  cen- 
ters.^"^'^  The  shipper  is  not  interested  in  the  divisions  of  rates 
between  the  carriers  unless  the  resultant  through  rate  is  unrea- 
sonable, and  proportionals  do  not  measure  local  rates. ^'^ 

§  119.  Through  Rates  Must  Not  Exceed  Aggregate  of  In- 
termediate Rates. — This  amendment  to  the  fourth  section  of 

"^Bascom    Co.   v.   Atchison,   T.  Co.,  17  I.  C.   C.  54,  57;  Ottumwa 

&  S.  F.  Ry.  Co.,  17  I.  C.  C.  354,  Commercial  Assn.  v.  Chicago,  B. 

356,    357.      See   also    Kansas    City  &  Q.  R.  Co.,  17  I.  C.  C.  413,  414. 

Transp.  Bureau  v.  Atchison  T.  &  ^^  R.     R.    Com.     of    Kansas    v. 

F.    R.    Co..    16   I.    C.    C.    195,   201;  Atchison,  T.  &  S.  F.  Ry.  Co.,  22 

Board    of   Trade    of   Kansas    City  I.   C.   C.   407,   415. 

T.    St.   Louis   &   S.   F.   R.    Co.,   32  '''  Indianapolis    Freight   Bureau 

I.     C.     C.    297,    307;     Commodity  v.   Cleveland,   C.  C.   &  St.  L.  Ry. 

Rates    to     Pacific    Coast    Termi-  Co.,  15  I.  C.  C.  504,  512;  Interior 

nals,  32   I.   C.   C.   611,   632;   Hock-  Iowa   Cities   Case,  28  I.   C.   C.  64, 

ing  Valley  R.  Co.  v.  Lackawanna  73;    Serry  v.    Southern    Pac.    Co., 

Coal  &  Lumber  Co.,  224  Fed.  930.  IS  I.  C.  C.  554,  556;   Scott-Mayer 

"'  Greater    Des     Moines     Com-  Commission  Co.  v.  Chicago,  R.  I. 

mittee  v.  Chicago,  R.  I.  &  P.  Ry.  &  P.  Ry.  Co.,  2S  I.  C.  C.  529,  532. 


§  119.: 


Must  Be  Reasonable. 


207 


the  original  act  provides:  "It  shall  be  unlawful  for  any  common 
carrier  subject  to  the  provisions  of  this  Act  *  *  *  to  charge 
any  greater  compensation  as  a  through  rate  than  the  aggregate 
of  the  intermediate  rates  subject  to  the  provisions  of  this  Act." 

It  is  further  provided  "that  upon  application,"  authority  may 
be  given  "to  charge  less  for  longer  than  for  shorter  dis- 
tances," and  the  "Commission  may  from  time  to  time  prescribe 
the  extent  to  which  such  designated  common  carriers  may  be 
relieved  from  the  operation  of  this  section. "i"^- 

Does  the  authority  to  grant  relief  apply  to  the  whole  section 
or  only  to  the  long  and  short  haul  clause  thereof?  Without  the 
Amendment  the  Commission  had  applied  as  a  general  rule  the 
principle  that  joint  through  rates  should  not  exceed  the  sum  of 
the  locals,  and  ^'"  if  the  statute  does  not  make  universal  this 
rule  it  means  nothing. ^''■*     It  would  seem  that  Congress  had  in 


"''Post,   Sec.   355. 

"'  Sec.   117,  supra. 

"*The  importance  of  this  pro- 
vision and  the  questions  that  will 
have  to  be  determined  thereim- 
der,  make  it  of  interest  to  insert 
here  the  House  and  Senate  pro- 
visions, that  comparison  may  be 
had  between  the  Section  as 
passed  and  the  provision  in  the 
Senate  and  House  bills.  Senate 
Bill:  "That  section  four  of  the 
Act  entitled  'An  Act  to  regulate 
commerce,'  approved  February 
fourth,  eighteen  hundred  and 
eighty-seven,  be  amended  by 
striking  out  the  words  'under  sub- 
stantiall}'  similar  circumstances  and 
conditions,'  where  the  same  ap- 
pear in  said  section  four,  and  fur- 
ther amend  said  section  four  of 
said  Act  by  striking  out  all  of 
said  section  four,  beginning  with 
the  words  'Provided,  however,' 
and  further  amend  said  section 
four  so  that  when  amended  it 
will  read  as  follows:  'Sec.  4. 
That  it  shall  be  unlawful  for  any 
common  carrier  subject  to  the 
provisions  of  this  Act  to   charge 


or  receive  any  greater  compensa- 
tion in  the  aggregate  for  the 
transportation  of  passengers  or 
of  like  kind  of  property,  for  a 
shorter  than  for  a  longer  distance 
over  the  same  line  or  route  in 
the  same  direction,  the  shorter 
being  included  within  the  longer 
distance,  or  to  charge  any  greater 
compensation  as  a  through  route 
than  the  aggregate  of  the  local 
rates;  but  this  shall  not  be  con- 
strued as  authorizing  any  com- 
mon carrier  within  the  terms  of 
this  Act  to  charge  or  receive  as 
great  compensation  for  a  shorter 
as  for  a  longer  distance: 

"  'Provided,  however,  That  the 
Interstate  Commerce  Commis- 
sion may,  from  its  knowledge,  or 
from  information,  or  upon  appli- 
cation, ascertain  that  the  circum- 
stances and  conditions  of  the 
longer  haul  are  dissimilar  to  the 
circumstances  and  conditions  of 
the  shorter  haul,  whether  they 
result  from  competition  by  wa- 
ter or  rail;  then  it  may  authorize 
a  common  carrier  to  charge  less 
for     the     longer     than      for     the 


208 


Charges  by  Common  Carriers 


119. 


mind,  when  the  Senate  and  House  bills  were  combined  and  both 
changed,  that  relief  could  be  granted  only   from  the  long  and 


shorter  distances  for  the  trans- 
portation of  passengers  or  prop- 
erty; but  in  no  event  shall  the 
authority  be  granted  unless  the 
commission  is  satisfied  that  all 
the  rates  involved  are  just  and 
reasonable  and  not  unjustly  dis- 
ci iminatory  nor  unduly  preferen- 
tial or  prejudicial. 

"  "That  no  rates  or  charges 
lawfully  existing  at  the  time  of 
the  passage  of  this  amendatory 
Act  shall  be  required  to  be 
changed  by  reason  of  the  provi- 
sions of  this  -section  prior  to  the 
expiration  of  six  months  after  the 
passage  of  this  Act,  nor  in  any 
case  where  application  shall  have 
been  filed  before  the  commission, 
in  accordance  with  the  provisions 
of  this  section,  until  a  determina- 
tion of  such  application  by  the 
commission; 

"  'Provided  that  such  determi- 
nation is  made  within  one  year 
after  the  passage  of  this  Act; 
Provided,  further,  That  if  more 
than  one  year,  in  the  opinion  of 
the  Interstate  Commerce  Com- 
mission is  needed  to  consider  the 
questions  and  make  such  deter- 
mination of  them,  the  Interstate 
Commerce  Commission  may  ex- 
tend the  time  beyond  one  year; 
Provided,  further,  That  when  ap- 
plication is  made  to  the  said  com- 
mission by  a  carrier  to  fix  a  lower 
rate  for  longer  than  for  shorter 
distances  on  account  of  water 
competition,  said  application  shall 
not  be  granted  if  the  commission, 
after  investigation,  shall  find  that 
the  lower  rate  asked  for  will  de- 
stroy water   competition.'  " 

House  Bill:    "Sec.  8.    That  sec- 


tion four  of  said  Act  to  regulate 
commerce  be  amended  so  as  to 
read  as  follows: 

"  'Sec.  4.  That  it  shall  be  unlaw- 
ful for  any  common  carrier  sub- 
ject to  the  provisions  of  this  Act 
to  charge  or  receive  any  greater 
compensation  in  the  aggregate 
for  the  transportation  of  passen- 
gers, or  of  like  kind  of  property, 
for  a  shorter  than  for  a  longer 
distance  over  the  same  line  or 
route  in  the  same  direction,  the 
shorter  being  included  within  the 
longer  distance,  or  to  charge  any 
greater  compensation  as  a  through 
route  than  the  aggregate  of  the 
local  rates;  but  this  shall  not  be 
construed  as  authorizing  any 
common  carrier  within  the  terms 
of  this  Act  to  charge  or  receive 
as  great  compensation  for  a 
shorter  as  for  a  longer  distance; 

"  'Provided,  however.  That 
upon  application  to  the  Interstate 
Commerce  Commission  such  com- 
mon carrier  may  in  special  cases, 
after  investigation,  be  authorized 
b}'  the  commission  to  charge  less 
for  longer  than  for  shorter  dis- 
tances for  the  transportation  of 
passengers  or  property;  and  the 
commission  may  from  time  to 
time  prescribe  the  extent  to 
which  such  designated  common 
carrier  may  be  relieved  from  the 
operation  of  this  section;  Pro- 
vided, further,  That  no  rates  or 
charges  lawfully  existing  at  the 
time  of  the  passage  of  this 
amendatory  Act  shall  be  required 
to  be  changed  by  reason  of  the 
provisions  of  this  section  prior  to 
the  expiration  of  six  months  after 
the    passage    of    this    Act,    nor    in 


§  119. 


Must  Be  Reasonable. 


209 


short  haul  clause,  which  clause  as  theretofore  construed  meant 
practically  nothing,  and  that  the  words  authorizing  relief  "from 
the  operation  of  this  section"  meant  that  "section"  was  limited 
by  the  words  "be  authorized  *  *  *  to  charge  less  for  longer 
than  for  shorter  distances."  ^'''  However  this  may  be,  the  Com- 
mission has  applied  the  principle  that  through  rates  must  not 
exceed  the  sum  of  the  locals  although  implying  that  there 
might  be  conditions  justifying  a  departure  from  the  general 
rule.^'''^     Local  rates  that  are  not  "subject  to  the  provisions  of" 


any  case  where  application  shall 
have  been  filed  before  the  com- 
mission, in  accordance  with  the 
provisions  of  this  section,  until  a 
determination  of  such  application 
by  the  commission.'  " 

The  Committee  of  the  House, 
in  reporting  the  original  bill,  said: 
"Section  6b  proposes  an  amend- 
ment to  section  4  of  the  inter- 
state commerce  act  in  relation  to 
charges  for  long  and  short  hauls. 
The  existing  law  provides  that 
the  carrier  shall  not  charge 
greater  compensation  'under  sub- 
stantially similar  circumstances 
and  conditions'  for  a  shorter  than 
for  a  longer  distance  over  the 
same  line  in  the  same  direction, 
but  authorizes  the  commission  in 
special  cases  to  relieve  the  car- 
rier from  the  operation  of  this 
provision.  The  courts  have  so 
construed  the  meaning  of  the 
words  'under  substantially  similar 
circumstances  and  conditions'  as 
to  practically  deprive  section  4  of 
the  existing  law  of  real  vitality. 
In  the  substitute  recommended 
by  your  committee,  section  4  of 
the  existing  law  is  amended  so 
as  to  leave  out  the  words  'under 
substantially  similar  circumstances 
and  conditions'  and  to  prohibit  a 
carrier  from  receiving  greater 
compensation  for  a  shorter  than 
for    a    longer    distance    over   the 


same  line  in  the  same  direction, 
the  shorter  being  included  within 
the  longer  distance,  or  to  receive 
a  greater  compensation  as  a 
through  route  than  the  aggregate 
of  the  local  rates,  but  authorizing 
the  Interstate  Commerce  Com- 
mission to  relieve  a  carrier  upon 
application  from  the  operation  of 
this  section;  and  in  order  not  to 
unduly  disturb  existing  conditions 
in  an  abrupt  manner  the  amend- 
ment further  provides  that  no 
rates  or  charges  lawfully  existing 
at  the  time  of  the  passage  of  the 
proposed  act  shall  be  required  to 
be  changed  by  reason  of  this  sec- 
tion prior  to  the  expiration  of  six 
months  after  passage  of  the  act, 
nor  until  any  application  made 
with  the  commission  shall  have 
been    determined." 

^'^  The  English  Railway  and 
Traffic  Act  of  1888,  section  27, 
gave  the  Commissioners  power  to 
direct  that  no  greater  charge 
should  be  made  for  a  shorter  than 
a  longer  haul  when  the  circum- 
stances demanded  such  direction. 
Halsbury's  Laws  of  England,  vol. 
4,   p.   81. 

"'Arabol  Mfg.  Co.  v.  South 
Brooklyn  Ry.  Co.,  25  I.  C.  C.  429, 
430;  Commercial  Club  of  Duluth 
V.  Baltimore  &  O.  R.  Co.,  27  I. 
C.    C.    639,    660. 


210  Charges  by  Common  Carriers  [§  120. 

the  Act  to  Regulate  Commerce  are  not  necessarily  a  proper  meas- 
ure of  the  through  rate.  The  Commission  does,  and  properly 
should,  give  consideration  to  rates  fixed  by  State  Commissions 
but,  were  it  bound  by  such  rates  the  exclusive  power  of  Con- 
gress over  interstate  commerce  would  be  made  subordinate  to 
the  action  of  the  states. ^'^  In  discussing  this  question  the  Com- 
mission has  said : 

"While  state  rates  are  valuable  for  comparative  purposes  in 
fixing  a  reasonable  charge  for  a  transportation  service,  the  as- 
sumption of  complainant  that  the  action  of  the  defendant  in  this 
case  in  maintaining  higher  transportation  rates  on  interstate 
than  intrastate  traffic  amounts  to  unlawful  discrimination  on  the 
part  of  the  carrier  is  not  sound,  for  upon  the  record  it  is  shown 
that  the  condition  is  one  over  which  the  carrier  has  no  con- 
trol."i'S 

§  120.  Through    Routes    and   Joint   Rates. — If   only   the 

rates  on  the  lines  of  each  carrier  considered  separately  were  sub- 
ject to  the  regulation  of  the  commission,  it  would  be  very  diffi- 
cult to  obtain  reasonable  rates  on  those  commodities  which 
move  over  two  or  more  lines.  For  this  reason,  carriers  subject 
to  the  act  are  recjuired  to  establish  through  routes  and  joint  rates. 
Joint  rates  must  be  reasonable  and  the  principles  relating  to 
rates  generally  apply  as  well  to  these  rates.  Of  the  right  of 
shippers  to  through  routes  and  joint  rates  ]Mr.  Commissioner 
Clements  says :  ^'''' 

'"The  law  does  not  require  the  commission  in  all  cases  where 
no  through  routes  and  joint  rates  exist  to  establish  them,  but 
only  empowers  it  to  do  so  in  proper  cases  with  the  manifest  in- 
tent of  giving  effect  to  the  general  purposes  of  the  act  to  regulate 
commerce  by  securing  reasonable  facilities  to  the  public  and  pre- 
venting unreasonable  and  unjust  rates,  practices,  and  discrim- 
inations, and  in  the  exercise  of  this  authority  the  commission  is 
bound  by  the  same  considerations  of  justice  and  fairness  as  it  is 

'"Cobb    V.    Northern    Pac.    Ry.  C.  C.  544:  Rates  on  Live  Poultry 

Co.,  20  I.  C.   C.  100,  102;   Pulp  &  In    Western    Trunk    Line    Terri- 

Paper  Mfrs.  Traffic  Assn.  v.  Chi-  tory.  32   L   C    C.  380. 

cago,    M.    &    St.    P.    Ry.    Co.    27  '"Baxter   &  Co.  u.   Georgia,   S. 

I.    C.    C.    S3,    96;    Corp.    Com.    of  &  F.  Ry.  Co.,  21  L  C.  C.  647,  648. 

Okla.  V.  A.  T.   &  S.   F.   Ry.   Co.,  "'Loup    Creek    Colliery    Co.   v. 

31   I.   C.   C.  532.     Rates   on   Beer  Virginian  Ry.  Co..  12  L  C.  C.  471, 

and    Other   Malt    Products,   31   I.  477. 


§  121.]  Must  Be  Reasonable.  211 

in  the  exercise  of  the  rate-making  power  in  other  respects. 
Where  neither  the  interest  of  the  public,  nor  the  ends  of  jus- 
tice as  between  parties  directly  interested,  will  be  promoted  by 
the  establishment  of  through  routes  and  joint  rates  and  divi- 
sions thereof,  a  proper  case  for  the  exercise  of  the  authority 
invoked  has  not  been  shown." 

In  discussing  an  order  for  a  through  route  made  by  the  Com- 
mission prior  to  the  amendments  of  1910  and  1912,  the  Su- 
preme Court  construing  the  statute  said : 

"We  are  of  the  opinion  that  the  Commission  had  no  power  to 
make  the  order,  if  a  reasonable  and  satisfactory  through  route 
already  existed,  and  that  the  existence  of  such  a  route  may  be 
inquired  into  by  the  courts.''  ^*'' 

§  121.  Same  Subject — Amendments  of  1910  and  1912. 
— Section  one  of  the  Act  to  Regulate  Commerce,  as  amended  by 
the  Act  of  1906,  made  it  the  duty  of  carriers  "to  establish 
through  routes  and  joint  and  reasonable  rates  applicable 
thereto."  ^*^ 

The  Amendment  of  August  24,  1912,  known  as  the  Panama 
Canal  Act,  provides  that,  "when  property  may  be  or  is  trans- 
ported from  point  to  point  in  the  United  States  by  rail  or  water 
through  the  Panama  Canal  or  othen^'ise  '■-  *  *  in  addition  to 
the  jurisdiction  given  by  the  Act  to  Regulate  Commerce"  other 
jurisdiction  is  given. ^''-  In  the  specified  additional  jurisdiction 
this  is  stated:  "To  establish  through  routes  and  maximum  joint 
rates  between  and  over  such  rail  and  water  lines,  and  to 
determine  all  the  terms  and  conditions  under  which  such  lines 
shall  be  operated  in  the  handling  of  the  traffic  embraced."  ^^^ 

The  Act  of  1910  gave  the  Commission  permission  and  power 
"after  hearing"  to  "establish  through  routes  and  joint  classifica- 
tion," and  "to  establish  joint  rates  as  the  maximum  to  be  charged" 
and  to  "prescribe  the  division  of  such  rates,"  and  to  prescribe 
the  "terms  and  conditions  under  which  such  through  routes  shall 
be  operated ;"  and  the  provision  was  made  to  apply  "when  one 


^*°  Int.   Com.   Com.  v.   Northern  Commission     in     Re     Matter     of 

Pac.  Ry.  Co.,  216  U.  S.  538,  544,  Through    Passenger    Routes    via 

54  L.  Ed.  608,  30  Sup.  Ct.  417,  af-  Portland  Oregon,  16  I.  C.  C.  300. 

firming    Circuit    Court,    Northern  ^"^  Sec.  335,  post. 

Pac.   Ry.    Co.  v.   Int.   Com.   Com.  "=  Sec.  375,  post. 

and  setting  aside  the  order  of  the  ^"^  Sec.    377,   post. 


212  Charges  by  Commok^  Carriers  [§  121. 

of  the  connecting  carriers  is  a  water  line."  ^^^  There  was  a  limi- 
tation on  the  power  by  the  provision  that  "The  Commission  shall 
not  require  any  company,  without  its  consent,  to  embrace  in  such 
route  substantially  less  than  the  entire  length  of  its  railroad  and 
of  any  intermediate  railroad  operated  in  conjunction  and  under 
a  common  management  and  control  therewith  which  lies  between 
the  termini  of  such  proposed  through  route,  unless  to  do  so  would 
make  such  through  route  unreasonably  long  as  compared  with 
another  practicable  through  route  which  could  otherwise  be  es- 
tablished." 1^5 

The  Act  of  1906,  limiting  the  Commission's  power  by  this 
language,  "provided  no  reasonable  or  satisfactory  through  route 
exists,"  was  not  reenacted  in  section  15  of  the  Act  of  1910.  This 
change  in  the  statute  makes  inapplicable  to  the  present  law  the 
decision  of  the  Supreme  Court  in  Interstate  Commerce  Commis- 
sion V.  Northern  Pacific  Railway,  supra.  The  law  as  now  written 
provides  for  a  hearing  with  or  without  a  formal  complaint  and 
invests  in  the  Commission  a  discretion  as  to  when  and  under 
what  conditions  through  routes  and  joint  rates  may  be  estab- 
lished; the  limitation  quoted  above,  of  course,  controlling  this 
discretionary  power.  Other  than  the  quoted  limitation  the  Com- 
mission now  has  like  power  over  through  routes  and  joint  rates 
as  over  any  other  kind  of  a  rate.^**^  In  exercising  this  discre- 
tion the  Commission  may  permit  one  carrier  to  demand  "finan- 
cial security  before  entering  into  either  joint  rate  arrangements 
or  accepting  freight  under  proportional  rates."  ^*' 

The  Commission  has  construed  the  words  "'or  otherwise" 
quoted  from  the  Panama  Canal  Act,  iiifro,  and  has  held  that  it 
could  thereunder  establish  through  routes  with  a  water  carrier.^*^ 


'"*  Sec.   400,   post.  so.     Ogden   Gateway   Case,  35   I. 

'"'Sec.  401,  post.     Downie  Pole  C.   C.   131. 

Co.   z:    X.    P.    Ry.    Co..    31    I.    C.  '-'Truckers      Transfer      Co.     v. 

C.  142;  Lumber  Rates  from  North  Charleston  &  W.  C.  Ry.  Co.,  27  1. 

Pacific    Coast,    30    I.    C.    C.    Ill;  C.      C.     275.     277;      Crane      Iron 

Wheeler  Lumber,  Bridge  &  Sup-  Works  z'.  United  States,  Opinion 

ply  Co.  V.  A.  T.  &  S.  F.  R3\  Co.,  Commerce  Court  No.  55,  pp.  453, 

30    I.    C.    C.    343;    Cement    Rates  464,    209    Fed.    238. 

from  Mason  City,  30  I.  C.  C.  426;  '"Truckers      Transfer      Co.      v. 

New  York  Dock  Ry.  v.  B.  &  O.  Charleston   &  W.   C.  RJ^   Co.,  27 

R.    Co.,   32   I.    C.   C.   568;   St.   L.   I.  I.    C.   C.  275.   279. 

M.  &  S.  Rv.  Co.  V.  U.  S.,  217  Fed.  '""  .Augusta  &  Savannah  Steam- 


§  122.]  ]\IusT  Be  Reasonable.  213 

The  Commission  in  the  case  where  such  holding  was  first  made 
said : 

"If  the  above  amendment  applies  to  the  traffic  in  question,  the 
right  of  the  Commission  to  estabHsh  this  through  route  is  clear. 
The  defendants  contend  that  it  does  not  apply,  for  the  reason 
that  this  amendment  relates  only  to  the  traffic  which  passes 
through  the  Panama  Canal.  They  argue  that  the  words  'or 
otherwise'  modify  the  phrase  'by  rail  and  w^ater'  and  not  the 
phrase  'through  the  Panama  Canal.'  But  the  plain  everyday 
reading  of  the  act  is  'through  the  Panama  Canal  or  otherwise,' 
and  the  defendants  have  referred  us  to  no  canon  of  construction 
nor  to  any  reason  for  disregarding  the  obvious  meaning  of  those 
words.  Indeed,  a  consideration  of  the  situation  to  which  the 
amendment  applies  would  seem  to  conclusively  demonstrate  that 
the  position  of  the  defendants  is  not  correct,  since  the  words  'or 
otherwise'  are  pure  surplusage  if  read  as  the  defendants  say  they 
should  be.  Traffic  through  the  Panama  Canal  can  only  move 
by  rail  and  water,  unless  it  moves  from  port  to  port,  and  in 
that  case  we  have  no  jurisdiction.  We  hold,  therefore,  that  the 
Commission  has  jurisdiction  to  establish  the  through  routes  and 
the  joint  rates  prayed  for." 

§  122.  Rates  on  Commodities  Requiring-  Refrigeration. 
— The  charge  made  by  a  carrier  for  refrigeration  must,  like  all  of 
its  other  charges,  be  reasonable.  To  determine  what  is  reasonable 
the  general  principle  applied  to  other  rates  must  be  considered  as 
well  as  the  special  circumstances  peculiar  to  the  shipment.  On 
this  subject  the  Commission  has  held:  ^^^ 

"In  determining  what  is  a  reasonable  charge  for  furnishing 
refrigeration  for  the  movement  of  citrus  fruits  from  California 
to  eastern  markets,  nothing  should  be  added  by  reason  of  the 
fact  that  a  refrigerator  car  is  used,  since  that  has  been  taken  into 
account  in  establishing  the  rate  of  transportation,  nor  for  the 
service  of  inspection,  which  is  substantially  the  same  for  all  ship- 
ments; but  the  expense  of  transporting  the  additional  weight  of 
the  ice  and  for  repairs  to  the  ice  bunkers  should  be  considered." 

boat  Co.  V.  Ocean  Steamship  Co.,  of  N.  J.  R.   Co.,  35  I.   C.   C.  488. 

26  I.  C.  C.  380,  384,  385;  Decatur  "^Arlington      Heights     Freight 

Navigation    Co.    v.    L.    &    N.    R.  Exchange    v.    Southern    Pac.    Co., 

Co.,  31   I.  C.  C.  281;  Pacific  Nav.  20  I.  C.  C.  106;  same  styled  case, 

Co.  V.   S.   P.   Co.,   31   I.   C.   C.   472.  23  I.   C.   C.  149;   at  p.  156  see  dis- 

Federal  Sugar  Refining  Co.  v.  C.  cussion  of  "postage  stamp  rates." 


214  Charges  by  Common  Carriers  [§  123 

In  the  same  case  it  was  held  that  when  the  shipper  pre-cooled 
his  fruit,  such  fact  must  be  considered  in  determining  the 
rate.ii^o 

§  123.  Rates  on  Returned  Shipments. — What  the  privilege 
of  returning  shipments  at  less  than  usual  rates  means  and  the 
origin  and  growth  thereof  are  stated  by  the  Commission : 

"The  returned-shipment  privilege  seems  to  have  originated 
for  the  purpose  of  assisting  the  agricultural  interests.  Farm  im- 
plements and  machinery  often  prove  defective  or  break  down 
while  in  use,  and  if  full  tariff  rates  must  be  paid  for  their  trans- 
portation to  a  point  where  repairs  can  be  effected,  the  farmer  is 
subjected  to  a  serious  handicap.  Rules  were  therefore  adopted 
permitting  the  return  of  agricultural  implements,  vehicles,  and 
similar  articles  at  one-half  the  regular  rates. 

"Through  the  operation  of  competitive  forces  the  return-ship- 
ment rules  became  increasingly  liberal  and  were  gradually  en- 
larged to  cover  the  return  of  freight  of  every  character  and  for 
every  purpose.  *  *  *  The  record  shows  that  while  returned 
shipments  form  but  a  small  proportion  of  the  carriers'  entire 
traffic  the  privilege  is  of  importance  to  several  branches  of  indus- 
try." 

After  thus  describing  the  rule  and  after  discussing  the  ques- 
tion involved  therein,  the  Commission  condemned  the  privilege 
as  having  no  legal  or  logical  basis. ^°^ 

In  the  same  opinion,  at  page  418,  it  was  shown  that  when  the 
returned  shipment  was  on  "freight  in  an  obviously  deteriorated 
condition,"  the  axiom  "that  rates  depend  largely  upon  value" 
should  be  considered,  not  because  it  was  a  returned  shipment 
but  because  of  the  value.  The  difficulty  of  always  considering 
value  in  this  connection  is  manifest  and  was  pointed  out  by  j\Ir. 
Commissioner  Clements  as  follows : 

""  The  order  of  the  Commission  lantic  C.  L.  R.  Co.,  17  I.  C.  C. 
was  sustained  by  the  Commerce  423;  Georgia  Fruit  Exchange  v. 
Court,  Atchison,  T.  &  S.  F.  Ry.  Southern  Ry.  Co.,  20  I.  C.  C. 
Co.  V.  United  States,  204  Fed.  623;  Albree  v.  Boston  &  M.  R. 
G47,  Opinion  Commerce  Court  Co.,  22  I.  C.  C.  303. 
No.  41,  p.  027.  For  other  appli-  "'  Re  Reduced  Rates  on  Re- 
cations  of  the  rule,  see  Ozark  turned  Shipments,  19  I.  C.  C.  409. 
Fruit  Growers  Assn.  v.  St.  Louis  414,  and  discussion  and  cases 
&  S.  F.  Ry.  Co.,  16  I.  C.  C.  106;  cited  at  pp.  416,  417. 
Asparagus   Growers  Assn.  v.  At- 


§  124.]  Must  Be  Reasonable.  215 

"We  are  not  prepared  to  lay  down  the  principle  that  old  or 
secondhand  articles  must  be  treated  differently  from  new  or  that 
value  is  the  controlling  element  in  making  rates.  Such  of  these 
articles  or  parts  as  are  in  fact  scrap  are  entitled  to  the  scrap 
rate,  but  if  they  have  any  value  as  the  articles  which  they  orig- 
inally purported  to  be,  we  do  not  feel  that  we  can  recjuire  the 
carriers  to  transport  them  at  other  than  the  regular  tariff'  rates 
applicable  to  the  new  or  originally  transported  article."  ^^^ 

§  124.  The  Public  Interest  Must  Be  Considered  in  Mak- 
ing Rates. — A  rate  made  by  a  carrier,  a  legislative  or  an  admin- 
istrative body  must  not  disregard  the  interests  of  the  public,  and 
the  fact  that  a  particular  rate  is  necessary  to  enable  the  carrier 
to  pay  interest  and  dividends  will  not  justify  a  rate  which  is  un- 
duly burdensome  on  the  public. 

The  legislature  of  Kentucky  having  prescribed  the  maximum 
rate  to  be  charged  by  turnpike  roads  in  that  state,  the  Supreme 
Court  in  determining  whether  or  not  such  act  was  illegal, 
said:  193 

"It  is  proper  to  say  that  if  the  answer  had  not  alleged,  in 
substance,  that  the  tolls  prescribed  by  the  act  of  1890  were 
wholly  inadequate  for  keeping  the  road  in  proper  repair  and  for 
earning  dividends,  we  could  not  say  that  the  act  was  unconsti- 
tutional merely  because  the  company  (as  was  alleged  and  as 
the  demurrer  admitted)  could  not  earn  more  than  4  per  cent  on 
its  capital  stock.  It  cannot  be  said  that  a  corporation  operating 
a  public  highway  is  entitled,  as  of  right,  and  without  reference 
to  the  interests  of  the  public,  to  realize  a  given  per  cent  upon 
its  capital  stock.  When  the  question  arises  whether  the  legis- 
lature has  exceeded  its  constitutional  power  in  prescribing  rates 
to  be   charged   by   a  corporation   controlling  a   public   highway, 


"'Minneapolis    Traffic   Assn.    v.  186    U.    S.    257,    268,    46    L.    Ed. 

Chicago    &    N.    W.    Ry.    Co.,    23  1151,     1158,     22     Sup.     Ct.     900; 

I.   C.  C.  432,  437.  Loftus  V.   Pullman   Co.,   18   I.   C. 

"'Covington     &     L.     Turnpike  C.  135,  140;  "Having  in  mind  the 

Road  Co.  V.  Sandford,   164  U.  S.  public    interest;"    R.    R.    Com.    of 

578,  596,  597,  41  L.   Ed.  560,  566,  Texas  v.  Atchison,  T.  &  S.  F.  Ry. 

567,  17  Sup.  Ct.  198.     Quoted  and  Co.,   20   I.    C.    C.   463,   484;   R.   R. 

followed,  Smyth  v.  Ames,  169  U.  Com.   of   Kansas  v.   Atchison,   T. 

S.  466,  545,  42  L.  Ed.  819,  848,  18  &  S.  F.   Ry.   Co.,  22   I.   C.   C.  407, 

Sup.  Ct.  418.     See  also  Minneap-  410.    As  to  what  is  a  "fair  return" 

olis  &  St.  L.  R.  Co.  V.  Minnesota,  see  post,  Sec.  131.    Supra,  Sec.  83. 


216  Charges  by  Common  Carriers  [§  125. 

stockholders  are  not  the  only  persons  whose  rights  or  interests 
are  to  be  considered.  The  rights  of  the  public  are  not  to  be 
ignored.  It  is  alleged  here  that  the  rates  prescribed  are  unrea- 
sonable and  unjust  to  the  company  and  its  stockholders.  But 
that  involves  an  inquiry  as  to  what  is  reasonable  and  just  for 
the  public.  If  the  establishing  of  new  lines  of  transportation 
should  cause  a  diminution  in  the  number  of  those  who  need  to 
use  a  turnpike  road,  and,  consequently,  a  diminution  in  the  tolls 
collected,  that  is  not,  in  itself,  a  sufficient  reason  why  the  corpo- 
ration, operating  the  road,  should  be  allowed  to  maintain  rates 
that  would  be  unjust  to  those  who  must  or  do  use  its  property. 
The  public  cannot  properly  be  subjected  to  unreasonable  rates 
in  order  simply  that  stockholders  may  earn  dividends.  The  leg- 
islature has  the  authority  in  every  case,  where  its  power  has  not 
been  restrained  by  contract,  to  proceed  upon  the  ground  that  the 
public  may  nOt  rightfully  be  required  to  submit  to  unreasonable 
exactions  for  the  use  of  a  public  highway  established  and  main- 
tained under  legislative  authority.  If  a  corporation  cannot  main- 
tain such  a  highway  and  earn  dividends  for  stockholders,  it  is  a 
misfortune  for  it  and  them  which  the  constitution  does  not  re- 
quire to  be  remedied  by  imposing  unjust  burdens  upon  the  pub- 
lic." 

A  particular  service  falling  within  the  absolute  duties  of  the 
carrier  may  be  required  of  a  public  carrier,  when  it  is 
necessary  to  the  public  convenience,  where  the  whole  serv- 
ice performed  yields  a  fair  compensation,  even  though  such  par- 
ticular service  must  be  furnished  at  a  loss  to  the  carrier.i^'* 

§  125.  General  Principles  Applicable  to  the  Question, 
What  Is  a  Reasonable  Rate? — It  was  a  maxim  of  traffic  man- 
agers that  "all  the  traffic  could  bear"  was  the  only  definite  prin- 
ciple applicable  to  rate  making.  Kirkman,  in  the  Science  of 
Railways,  vol.  8,  at  p.  11,  says:  "In  the  practical  operation 
of  railroads  such  rates  are  made  as  the  traffic  will  bear."'  If 
this  rule  were  adopted  there  would  be  little  difficulty  in  fixing 
rates.  But  it  is  apparent  that  such  a  rule,  in  view  of  the  fact 
that  the  business  of  transportation  companies  is  affected  with  a 
public  use,  would  be  unfair.    Air.  Commissioner  Clements,  in  Tift 

'**  Atlantic  Coast  Line  R.  Co.  z;.       933,  27  Sup.   Ct.  585.     See  in  this 
North  Carolina  Corporation  Com-       connection  Sec.   100,  supra. 
mission,    206    U.    S.    1,    51    L.    Ed. 


§  125.]  Must  Be  Reasonable.  217 

v.  So.  Ry.  Co.,  10  I.  C.  C.  548,  582,  says :  "This  claim  *  *  '' 
on  the  part  of  the  carriers  is  based  upon  the  erroneous  assump- 
tion, so  prevalent  among  traffic  managers,  that  a  rate  may  be  as 
high  as  'the  traffic  will  bear.'  "  What  "the  traffic  will  bear"  is,  by 
force  of  economic  law,  the  maximum.  It  has  been  seen  that  a  par- 
ticular service  may,  under  some  circumstances,  be  required  of  a 
common  carrier  at  less  than  cost,  but  ordinarily  cost  of  service 
fixes  the  minimum  rate.  It  is  interesting  and  instructive  to 
group  Avhat  has  been  said  by  the  courts  and  the  commission  with 
reference  to  this  problem.  The  Supreme  Court,  speaking  of  the 
basis  of  a  whole  schedule  of  rates,  said : 

"We  hold,  however,  that  the  basis  of  all  calculations  as  to  the 
reasonableness  of  rates  to  be  charged  by  a  corporation  main- 
taining a  highway  under  legislative  sanction  must  be  the  fair 
value  of  the  property  being  vised  by  it  for  the  convenience  of 
the  public.  And,  in  order  to  ascertain  that  value,  the  original 
cost  of  construction,  the  amount  expended  in  permanent  im- 
provements, the  amount  and  market  value  of  its  bonds  and  stock, 
the  present  as  compared  with  the  original  cost  of  construction, 
the  probable  earning  capacity  of  the  property  under  particular 
rates  prescribed  by  statute,  and  the  sum  recjuired  to  meet  oper- 
rating  expenses,  are  all  matters  for  consideration,  and  are  to  be 
given  such  weight  as  may  be  just  and  right  in  each  case.  We 
do  not  say  that  there  may  not  be  other  matters  to  be  regarded 
in  estimating  the  value  of  the  property.  What  the  company  is 
entitled  to  ask  is  a  fair  return  upon  the  value  of  that  which  it 
employs  for  the  public  convenience.  On  the  other  hand,  what 
the  public  is  entitled  to  demand  is  that  no  more  be  exacted  from 
it  for  the  use  of  a  public  highway  than  the  services  rendered  by 
it  are  reasonably  worth."  ^^^ 

In  the  same  case  the  court  said : 

"  Tn  passing  upon  questions  arising  under  the  act,  the  tri- 
bunal appointed  to  enforce  its  provisions,  whether  the  commis- 
sion or  the  courts,  is  empowered  to  fully  consider  all  the  cir- 
cumstances and  conditions  that  reasonably  apply  to  the  situa- 
tion, and  that,  in  the  exercise  of  its  jurisdiction,  the  tribunal 
may  and  should  consider  the  legitimate  interests  as  well  of  the 
carrying  companies  as  of  the  traders  and  shippers,  and  in  con- 

'-' Texas  &  P.  R.  Co.  v.  Int.  Ed.  940,  5  I.  C.  R.  405,  IG  Sup. 
Com.   Com.,   162   U.    S.   197,   40   L.       Ct.    Rep.   666. 


218  Charges  by  Common  Carriers  [§  126. 

sidering  whether  any  particular  locality  is  subjected  to  an  undue 
preference  or  disadvantage  the  welfare  of  the  communities  oc- 
cupying the  localities  where  the  goods  are  delivered  is  to  be  con- 
sidered as  well  as  that  of  the  communities  which  are  in  the  local- 
ity of  the  place  of  shipment." 

In  a  later  case  Covington  &  L.  Turnpike  Co.  v.  Sandford,  164 
U.  S.  578,  596,  597,  41  L.  Ed.  560,  566,  567,  17  Sup.  Ct.-  198 
section  124  supra,  it  was  held,  that  "the  rights  of  the  public  are  not 
to  be  ignored." 

The  Supreme  Court  in  the  Minnesota  rate  cases, ^^'^  speak- 
ing of  how  to  determine  the  "fair  value"  upon  which  a  fair  re- 
turn was  legally  required,  said:  "The  ascertainment  of  that 
value  is  not  controlled  by  artificial  rules.  It  is  not  a  matter  of 
formulas,  but  there  must  be  a  reasonable  judgment  having  its 
basis  in  a  proper  consideration  of  all  relevant  facts." 

There  is,  however,  a  flexible  limit  of  judgment  which  belongs 
to  the  power  to  fix  rates, ^^'  and,  as  to  rates  within  the  Interstate 
Commerce  Acts,  "the  Commission  is  the  tribunal  that  is  intrusted 
with  the  execution"  of  such  laws.^^^ 

§  126.  Same  Subject — Some  Statements  of  the  Commis- 
sion as  to  Such  General  Principles. — The  Commission  in 
Delaware  State  Grange  v.  New  York,  P.  &  N.  R.  Co.,  4  I.  C. 
C.  588,  3  I.  C.  R.  554,  560,  561,  speaking  of  the  general  princi- 
ples to  be  considered  in  rate  making,  says : 

"The  mandate  of  the  statute  is  that  all  rates  must  be  reason- 
able and  just,  but  how  the  reasonableness  and  justice  of  a  rate 
are  to  be  determined  is  not  prescribed  by  the  statute,  nor  has 
any  satisfactory  test  been  evolved  by  transportation  experts. 
Conflicts  about  rates  arise  from  the  conflicting  interests  of  car- 
riers and  shippers.  As  carriers  make  their  own  rates,  they 
have  primary  regard  for  their  own  interests,  and  often  give  less 
weight  than  they  ought  to  the  interests  of  those  they  serve.  This 
is  more  frequently  the  case  in  the  absence  of  competition.  Under 
stress  of  competition,  or  sometimes  for  the  purpose  of  develop- 

'°' Simpson    v.    Shepard,    230    U.        1,   26,   51   L.    Ed.   933,   27   Sup.    Ct. 
S.    352,    57    L.    Ed.    1511,    33    Sup.       585. 
Ct.    729.  "'  Int.    Com.    Com.   v.    Chicago, 

"'  Atlantic  C.  L.  R.  Co.  v.  North  R.  I.  &  P.  Ry.  Co.,  218  U.  S.  83, 
Carolina    Corp.    Com.,    20G    U.    S.       lOS,    54    L.    Ed.    946.    30    Sup.    Ct. 

585. 


§  126.]  Must  Be;  Reasonabi^e.  219 

ing  business,  rates  that  are  equitable  or  even  very  low  are  likely 
to  be  made.  But  when  a  controversy  arises  between  the  public 
and  a  carrier,  the  question  of  the  reasonable  limit  of  a  rate 
usually  involves  many  considerations,  and  is  often  difficult  to 
determine.  A  rate  that  might  be  regarded  as  reasonable  and 
just  by  a  producer  and  shipper,  might,  from  a  carrier's  stand- 
point, be  deemed  extremely  unreasonable  and  unjust,  and,  so, 
conversely,  a  rate  that  a  carrier  might  claim  to  be  reasonable  in 
itself,  and  that  it  might  support  with  strong  reasons  based  upon 
the  cost  of  the  service,  the  quantity  of  the  business  and  the 
characteristics  of  its  line  of  road,  might  exhaust  the  greater 
part  of  the  proceeds  of  the  producer's  commodity  and  be  de- 
structive to  his  interests.  It  is  only  stating  a  truism,  therefore, 
to  say  there  is  no  recognized  test  of  a  rate  mutually  reasonable 
for  a  carrier  and  for  the  producer  of  the  traffic. 

"The  reasonableness  of  a  rate  must  consequently  be  ascer- 
tained in  every  instance  in  which  the  question  arises,  by  its  re- 
lations both  to  the  carrier  and  to  the  shipper,  and  by  comparison 
with  rates  normally  charged  for  like  or  similar  service." 

In  Thompson  Lumber  Co.  v.  Illinois  C.  R.  Co.,  13  I.  C.  C. 
657,  664,  the  commission  says : 

"In  determining  what  is  a  reasonable  and  just  rate  many  con- 
siderations are  involved.  Among  these  are  the  general  financial 
and  physical  condition  of  the  road,  the  character  of  the  com- 
modity in  question,  whether  it  constitutes  a  large  or  small  part 
of  the  business  of  the  carrier,  whether  it  is  economical  or  ex- 
pensive to  handle,  how  it  compares  with  other  commodities 
hauled,  and,  as  evidencing  the  railroad's  own  judgment,  whether 
a  different  rate  has  been  in  effect  on  this  commodity  at  some 
other  time." 

Cost  and  value  of  service  are  discussed  by  the  commission  in 
Boston  Chamber  of  Commerce  v.  Lake  Shore  &  M.  S.  R.  Co., 
1  I.  C.  436,  1  I.  C.  R.  754,  760,  761,  as  follows: 

"The  element  of  cost  of  service  which  may  at  one  period  have 
been  recognized  as  controlling  in  fixing  rates  has  long  ceased  to 
be  regarded  as  the  sole  or  most  important  factor  for  that  pur- 
pose. The  vakie  of  the  service  with  respect  to  the  articles  car- 
ried, the  vohune  of  business,  and  the  conditions  and  force  of 
competition  are  justly  considered  to  have  controlling  weight  in 
determining  the  charges  for  transportation.     But  even  with  re- 


220  Charges  by  Common  Carriers  [§  127. 

gard  to  the  cost  of  service  the  cost  is  at  least  somewhat  greater 
to  Boston  than  to  Xew  York." 

Import  tariit  duties  should  not  be  counted  as  part  of  a  trans- 
portation charge. i^''^ 

"A  railroad  company  may  be  operated  with  a  less  return  than 
it  ought  to  enjoy  or  even  at  a  loss,  but  neither  condition  of  af- 
fairs would  justify  the  exaction  by  it  of  rates  that  are  higher 
than  they  reasonably  should  be  for  services  performed,  all  things 
being  considered."  -'^'^ 

The  problem  is  difficult,  the  facts  to  be  considered  multitudi- 
nous and  of  an  infinite  variety  of  modifying  conditions,  from 
which  the  commission,  without  applying  any  policy  which  runs 
counter  to  the  power  granted  and  the  duty  imposed  upon  it, 
seeks  by  "slow  evolution"  to  develop  a  satisfactory  system  of 
rates. -''1 

In  the  Eastern  Advance  Rate  case  -^-  the  Commission  said : 

"This  Commission  is  called  upon  to  deal  with  rates  as  they 
exist,  and  in  so  doing  we  ordinarily  consider  them,  not  from 
the  revenue  standpoint,  but  rather  from  the  commercial  and 
traffic  standpoint.  At  the  same  time  it  is  now  the  settled  law 
that  there  is  a  limit  below  which  the  revenue  of  railroads  can 
not  be  reduced  by  public  authority,  and  if  there  were  no  such 
constitutional  limitation  it  would  nevertheless  behoove  every  reg- 
ulating body  to  permit  the  existence  of  such  rates,  when  possible, 
as  will  yield  just  earnings  to  the  railways.  The  question  of  rev- 
enue is  therefore  fundamental  and  ever-present  in  all  considera- 
tions as  to  the  reasonableness  of  railroad  rates,  although  it  may 
not  be  and  seldom  is,  where  single  rates  are  presented,  the  con- 
trolling question." 

§  127.  Same  Subject — Illustrative  Cases. — It  has  been  the 
purpose  of  this  chapter  to  give  as  comprehensively  as  possible 
the  decisions  both  of  Commission  and  Courts  which  show  the 
principles  which  have  been  considered  and  applied  in  making 
rates.  The  principles  stated  herein  illustrate  the  difficulty  of  the 
problem,  but  they  furnish  data  from  which  some  generalizations 

"'  Florida    Fruit     &    \'egetable  ern     Ry.      Co.     v.     International 

Assn.  V.  Atlantic  C.  L.  R.  Co.,  17  Bridge   Co.,    8    App.    Cas.   731. 

I.    C.    C.    552,    561.  ="' Advances  in  Rates— Western 

^"''R.   R.    Comrs.   of   Iowa  v.   II-  Case— 20   I.   C.   C.   307,   379. 

linois    Cent.    R.    Co..   20    I.    C.    C.  ""^Advance     in     Rates — Eastern 

181,     186,     citing    Canada     South-  Case— 20   I.   C.   C.   243.  248. 


§  128.]  Must  Be  Reasonable.  221 

may  be  drawn.  In  recent  volumes  of  the  reports  of  the  decisions 
of  the  Commission  there  is  in  the  index  a  title,  ^Measure  of  Rates. 
Under  this  general  title  may  be  found  references  to  the  Commis- 
sion's rulings  relating  to  the  "adjustment  of  rates,"  "advantages 
and  disadvantages,"  "basis  of  rates,"  "branch  line  through  thinly 
populated  region,"  "burden  of  transportation,"  "capacity  of  boats," 
"car  earnings,"  "categorical  answers,"  "channels,  depth  of," 
"charging  wdiat  traffic  will  bear,"  "circumstances  and  conditions," 
"classification,"  "commercial  and  economic  conditions,"  "compar- 
ison of  rates,"  "competition,"  "competitive  rates,"  "cost,"  "cost 
of  carriage,"  "cost  of  construction,"  "cost  of  handling,"  "cost  of 
maintenance,"  "cost  of  operation,"  "cost  of  production,"  "cost  of 
transportation,"  "cost  of  service,"  "density  of  traffic,"  "distance," 
"division  of  rates,"  "division  of  through  rates,"  "earnings," 
"empty  car  movement,"  "equipment,"  "erroneous  rates,"  "fac- 
tor in  through  rates,"  "free  movement  of  traffic,"  "harbor,  con- 
dition of,"  "length  of  haul,"  "local  rates,"  "long  as  well  as  short 
haul,"  "main  line  rates,"  "nature  of  commodity,"  "navigation, 
condition  of,"  "paper  rates,"  "past  rates,"  "raw  material,"  "rela- 
tive rates,"  "return  haul,"  "risk,"  "state  rates,"  "three  line 
haul,"  "ton  mile  earnings,"  "ton  per  mile  rate,"  "tonnage,"  "train 
mile  earnings,"  "transportation  conditions,"  "trunk  line  rates," 
"two  line  haul,"  "use,"  "value  of  commodity,"  "value  of  serv- 
ice," "volume  of  traffic,"  "voluntary  rates,"  "voluntary  reduc- 
tions," "weak  line,"  and  "wharf  and  dock  facilities." 

And  in  one  case  the  question  of  how  a  rate  on  a  locomotive 
moving  on  its  own  wdieels  should  be  constructed  was  dis- 
cussed.-*'-" Many  other  facts  have  been  discussed  in  the  opinions 
of  the  Commission.  These  but  illustrate  the  correctness  of  the 
statement  that  "multitudinous   facts  must  be  considered." 

§  128.  Same  Subject— Discussion  of  Principles  in  Chi- 
cago Live  Stock  Exchange  Case. — In  speaking  of  the  fac- 
tors to  be  considered  in  rate-making,-"-'  Judge  Bethea,  citing 
authorities,  said : 

-"'Re      Investigation      of      Ad-  cago    G.   W.    Ry.    Co.,   209   U.    S. 

vance   on   Transportation    of   Lo-  108.    52    L.    Ed.    705,    28    Sup.    Ct. 

comotives   and  Tenders,  21   I.    C.  493.      In    this    case    the    order    of 

C.    10.3.  the  Commission  in  Chicago  Live 

"'"  Int.    Com.    Com.    z'.    Chicago  Stock    Exchange    v.    Chicago    G. 

G.    W.    R.    Co.,    141    Fed.    1003,  W.   R.    Co.,   10   I.   C.   C.   428,  was 

1015,  lOK).     Sustained  in  Supreme  licld    invalid. 
Court,     Int.     Com.     Com.   v.    Chi- 


222  Charges  by  Common  Carriers  [§  128. 

"A  careful  examination  of  the  opinions  of  that  court  (as  well 
as  the  evidence  taken  in  these  cases)  shows  that  there  are  a 
great  many  factors  and  circumstances  to  be  considered  in  fix- 
ing a  rate.  Xoyes,  Am.  R.  R.  Rates,  pp.  61  et.  seq.,  85-109. 
Among  other  things:  (1)  The  value  of  the  service  to  the  ship- 
per, including  the  value  of  the  goods  and  the  profit  he  could 
make  out  of  them  by  shipment.  This  is  considered  an  ideal 
method,  when  not  interfered  with  by  competition  or  other  fac- 
tors. It  includes  the  theory  so  strenuously  contended  for  by 
petitioners,  the  commission,  and  its  attorneys,  of  making  the 
finished  product  carry  a  higher  rate  than  the  raw  material.  This 
method  is  considered  practical,  and  is  based  on  an  idea  sim- 
ilar to  taxation.  Interstate  Commerce  Commission  v.  B.  &  O. 
Ry.  Co.  (C.  C.)  43  Fed.  Z7 ,  ':>Z;  Xoyes,  Am.  R.  R.  Rates,  53. 
(2)  The  cost,  of  service  to  the  carrier  would  be  an  ideal  theory, 
but  it  is  not  practical.  Such  cost  can  be  reached  approximately, 
but  not  accurately  enough  to  make  this  factor  controlling.  It 
is  worthy  of  consideration,  however.  Interstate  Commerce 
Commission  v.  Baltimore  &  O.  Ry.  Co.,  43  Fed.  Z7 ,  3  I.  C.  R. 
192;  Ransome  v.  Eastern  Counties  Railway  Company  (1857) 
I.  C.  B.  N.  S.  437,  26  L.  J.  C.  P.  91 ;  Judson  on  Interstate  Com- 
merce, §§  148,  149;  Western  Union  Telegraph  Co.  v.  Call  Pub- 
lishing Co.,  181  U.  S.  92,  21  Sup.  Ct.  561,  45  L.  Ed.  765;  Inter- 
state Commerce  Commission  v.  Detroit,  Grand  Haven  &  ]\Iil- 
waukee  Railroad  Co.,  167  U.  S.  633,  17  Sup.  Ct.  986,  42  L.  Ed. 
306.  (3)  Weight,  bulk  and  convenience  of  transportation.  (4) 
The  amount  of  the  product  or  the  commodity  in  the  hands  of 
a  few  persons  to  ship  or  compete  for,  recognizing  the  principle 
of  selling  cheaper  at  wholesale  than  at  retail.  Interstate  Com- 
merce Commission  v.  B.  &  O.  Ry.  Co.,  145  U.  S.  263,  12  Sup. 
Ct.  844,  36  L.  Ed.  699.  (5)  General  public  good,  including 
good  to  the  shipper,  the  railroad  company  and  the  different  lo- 
calities. Interstate  Commerce  Commission  v.  B.  &  O.  Ry.  Co., 
145  U.  S.  263,  12  Sup.  Ct.  844,  36  L.  Ed.  699.  (6)  Competi- 
tion, which  the  authorities,  as  well  as  the  experts,  in  their  tes- 
timony in  these  cases,  recognize  as  a  very  important  factor. 
Pickering  Phipps  v.  London  &  Northwestern  Railway  Com- 
pany, 2  0.  B.  D.  (1882)  229  (this  case  construes  section  2  of 
the  English  act  of  1854,  which  is  almost  like  section  3  of  our 
interstate  commerce  act )  ;   Interstate  Commerce   Commission  v. 


§  129.]  Must  Be  Reasonable.  223 

B.  &  O.  Ry.  Co.,  supra.;  Cincinnati,  New  Orleans  &  Texas  Pa- 
cific Railway  Company  v.  Interstate  Commerce  Commission,  162 
U.  S.  184,  16  Sup.  Ct.  700,  40  L.  Ed.  935 ;  Interstate  Commerce 
Commission  v.  Alabama  Midland  Railway  Company,  168  U.  S. 
144,  18  Sup.  Ct.  45,  42  L.  Ed.  414;  Louisville  &  Nashville  Rail- 
road Co.  z:  Behlmer,  175  U.  S.  648.  20  Sup.  Ct.  209,  44  L.  Ed. 
309;  East  Tennessee,  Virginia  &  Georgia  Railway  Company  v. 
Interstate  Commerce  Commission,  181  U.  S.  1,  21  Sup.  Ct.  516, 
45  L.  Ed.  719;  Texas  &  Pacific  Railway  Co.  v.  Interstate  Com- 
merce Commission,  162  U.  S.  197,  16  Sup.  Ct.  666,  40  L.  Ed. 
940;  Interstate  Commerce  Commission  z'.  Louisville  &  Nashville 
Railroad  Co.,  190  U.  S.  273,  23  Sup.  Ct.  687,  47  L.  Ed.  1047. 
The  Supreme  Court  has  also  held  that  it  may  be  presumed  that 
Congress,  in  adopting  the  language  of  the  English  act,  had  in 
mind  the  construction  given  to  the  words  "undue  preference''  by 
the  courts  of  England.  Interstate  Commerce  Commission  v. 
B.  &  O.  Ry.  Co.,  145  U.  S.  284,  12  Sup.  Ct.  844,  36  L.  Ed.  699. 

"None  of  the  above  factors  alone  are  considered  necessarily 
controlling  by  the  authorities.  Neither  are  they  all  controlling 
as  a  matter  of  law.  It  is  a  question  of  fact  to  be  decided  by  the 
proper  tribunal  in  each  case  as  to  what  is  controlling." 

§  129.  Same  Subject — Rate  Considered  in  and  of  Itself. 
— With  reference  to  a  rate  "in  and  of  itself,"  the  commission  has 
said:  20  5 

"It  is  said  that  the  rate  from  St.  Cloud  is  reasonable  in  and 
of  itself.  A  rate  can  seldom  be  considered  "in  and  of  itself." 
It  must  be  taken  almost  invariably  in  relation  to  and  in  connec- 
tion with  other  rates.  The  freight  rates  of  this  country,  both 
upon  difi'erent  commodities  and  between  different  localities,  are 
largely  inter-dependent,  and  it  is  the  fact  that  they  do  not  bear 
a  proper  relation  to  one  another,  rather  than  the  fact  that  they 
are  absolutely  either  too  low  or  too  high  which  most  often  gives 
occasion  for  complaint." 

In  the  Cattle  Raisers'  Asso.  case,  -"^  the  commission  discusses 
the  cost  to  the  carriers  at  originating  and  delivering  points,  cost 
and  maintenance  of  equipment,  expense  of  loading  and  reloading 
in  transit  incident  to  feeding,  watering  and  resting  the  stock,  char- 

^'^Tileston    Mill    Co.   z:    North-  """Cattle  Raisers'  Asso.  v.  Mis- 

ern  P.  R.  Co.,  8  I.  C.  C.  346,  361.       souri.    K.    &   T.    R.    Co..   11    I.    C. 

C.    296. 


224  Charges  by  Common  Carriers  [§  130. 

acter  of  the  movement,  number  of  cars  in  trains,  average  load- 
ing, volume  and  desirability  of  the  traffic,  return  of  empty  cars, 
liability  to  damage,  cost  of  carriage,  increased  cost  of  producing 
live  stock,  decreased  selling  price,  method  of  making  the  ad- 
vanced rates,  disappearance  of  competition,  cost  of  railroad  labor 
and  supplies,  improved  methods  of  operation  and  increased  gen- 
eral traffic,  mileage  revenue  per  ton  per  car  and  per  train,  and 
other  pertinent  circumstances  and  conditions. 

§  130.  Same  Subject — Commission  Not  Bound  by  Tech- 
nical Rules. — In  the  investigation  of  these  cjuestions  the  com- 
mission is  not  hampered  by  technical  rules.  The  Supreme  Court, 
said :  -'^' 

'-The  inquiry  of  a  board  of  the  character  of  the  Interstate 
Commerce  Commission  should  not  be  too  narrowly  constrained 
by  technical  rules  as  to  the  admissibility  of  proof.  Its  function 
is  largely  one  of  investigation,  and  it  should  not  be  hampered 
in  making  incjuiry  pertaining  to  interstate  commerce  by  those 
narrow  rules  which  prevail  in  trials  at  common  law,  where  a 
strict  correspondence  is  recjuired  between  allegation  and  proof. ' 

The  Commission's  right  to  consider  the  problem  in  all  its 
phar es  was  clearly  stated  by  the  Supreme  Court,  as  follows : 

"The  Commission  is  the  tribunal  that  is  intrusted  with  the 
execution  of  the  interstate  commerce  laws,  and  has  been  given 
very  comprehensive  powers  in  the  investigation'  and  deter- 
mination of  the  proportion  which  the  rates  charged  shall  bear 
to  the  service  rendered,  and  this  power  exists,  whether  the  sys- 
tem of  rates  be  old  or  new.  If  old,  interests  will  have  probably 
become  attached  to  them  and,  it  may  be,  will  be  disturbed  or 
disordered  if  they  are  changed.  Such  circumstance  is,  of  course, 
proper  to  be  considered  and  constitutes  an  element  in  the  prob- 
lem of  regulation,  but  it  does  not  take  jurisdiction  away  to  enter- 
tain and  attempt  to  resolve  the  problem.  And  it  may  be  that 
there  can  not  be  an  accommodation  of  all  interests  in  one  pro- 
ceeding." ^"^^ 

'"''  Int.  Com.  Com.  v.  Baird,  194  669.     See   also  Atlantic   C.   L.   R. 

U.    S.   25.   44,   4S    L.    Ed.    S60,    S69,  Co.   V.    Florida,   203   U.   S.   256,   51 

24    Sup.    Ct.    563.  ^  L.   Ed.  174,  27   Sup.   Ct.   108.     See 

""*  Int.    Com.    Com.    v.    Chicago  also    Seaboard   A.    L.    Ry.    Co.   v. 

R.    I.    &    P.    R.    Co.,   218   U.    S.   88,  Florida,  203  U.   S.  261,  51   L.   Ed. 

108,    54    L.    Ed.    946,    30    Sup.    Ct.  175,    27    Sup.    Ct.    109;    and    post, 

Section,   189. 


§131.]  ■  Must  Be  Reasonable.  225 

The  Commission  in  discussing  its  own  power  said : 

"It  must  be  borne  in  mind  that  this  Commission  is  not  a  court 
of  law ;  its  function  is  to  apply  the  mandatory  and  restrictive 
provisions  of  the  Act  to  Regulate  Commerce  to  stated  conditions 
of  fact.  We  must  regard  the  problems  presented  to  us  from 
as  many  standpoints  as  there  are  public  interests  involved."  ~^^ 

§  131.  Same  Subject — Summary. — The  statement  so  fre- 
quently made  and  reiterated  that  the  problem  of  rate-making  is 
a  difficult  one,  means  no  more  than  that  there  is  no  definite 
scientific  rule  by  which  it  can,  with  certainty,  be  determined  just 
what  is  a  reasonable  rate. 

The  "tribunal  appointed  by  law  and  informed  by  experience" 
has  evolved  and  is  evolving  principles  which  will  furnish  suffi- 
cient data  to  justify  generalizations  broad  enough  to  authorize 
the  deduction  of  scientific  principles.  In  making  these  deduc- 
tions, the  first  consideration  is  the  agency  which  performs  the 
service.  This  agency  performs  a  public  service,  devotes  its  prop- 
erty to  a  public  use  and  must,  therefore,  submit  to  public  regu- 
lation ;  but  the  capital  of  this  agency  is  private  capital  entitled 
to  protection  as  such.  From  these  facts  the  law  deduces  the 
principle  that  those  who  furnish  such  private  capital  so  devoted 
to  a  public  use  are  entitled  to  receive  a  fair  return  from  such 
investment.  What  is  a  "fair  return"  involves  economic  con- 
siderations such  as  the  risks  involved  in  the  investment,  the  se- 
curity of  the  investment  because  it  is  a  practical  monopoly,  re- 
turns which  capital  may  secure  from  other  investments,  as  well 
as  the  public  necessity  that  capital  shall  be  devoted  to  this  special 
use.  "Fair  return"  necessarily  involves  the  question  of  the  value 
of  the  property  so  devoted  to  the  public  use.  In  determining 
this  value  there  must  be  considered  the  investment,  that  made 
originally  and  that  added  in  permanent  improvements,  the  pres- 
ent market  value  of  the  stocks  and  bonds,  which  are  but  symbols 
of  the  investment,  the  question  of  the  cost  of  the  property,  its 
reproduction  cost  and  the  methods  of  making  the  investment, 
that  is,  was  the  investment  made  wisely  and  honestly  or  other- 
wise. The  character  of  the  territory  served  l)y  the  carrier  is 
not  infrequently  a  fact  which  must  not  be  lost  sight  of.  The 
extent  and  regularity  of  the  whole  movement  is  del,ermined  by 

'"•'Advances      in      Rates— West  m  n    Case— 30   I.   C.   C.   :J07,   315. 


226  Charges  by  Common  Cabbiers  [§  131. 

the  character  of  the  inhabitants  and  the  kinds  of  business  con- 
ducted by  them.  The  physical  situation  of  the  agency  as  to 
grades,  curves,  etc.,  may  materially  affect  the  cost  of  the  serv- 
ice and  thereby  determine  the  amount  of  the  return  which  should 
be  received. 

The  attitude  of  the  agency  to  the  question  is  not  without  value : 
the  way  the  problem  has  been  solved  by  the  agency  in  a  long 
course  of  dealing  would  indicate  that  such  agency  has  found  a 
solution  not  unfair  to  itself. 

The  thing  transported  must  be  considered.  Is  it  heavy  as 
compared  with  the  space  it  occupies  ?  Does  it  require  any  spe- 
cial equipment?  Is  it  subject  to  loss  or  injury  in  transporting? 
Is  there  much  or  little  of  it?  The  answers  to  these  questions  fur- 
nish facts  which  must  be  considered  in  classifying  commodities 
so  as  to  fix' rates  or  charges  for  their  transportation. 

The  places  from  and  to  which  the  commodities  move  are  fac- 
tors in  the  problem.  The  distance  a  thing  is  hauled  must  be 
considered,  as  the  greater  the  distance  the  less  ordinarily  is  the 
cost  for  each  mile  of  the  haul,  and  the  service  of  loading  and 
unloading  applies  the  same  to  a  short  as  to  a  long  haul. 

The  situation  of  the  man  who  owns  the  thing  moved  and  the 
purpose  of  the  movement  frequently  affects  the  question  of  the 
rate.  This  does  not  mean  that  rates  must  be  determined  by  the 
use  to  which  the  commodity  is  put ;  it  means  that  a  producer  of 
a  commodity  which  is  also  produced  by  others  in  the  same  gen- 
eral territory,  the  market  for  all  the  producers  being  the  same, 
can  not  ship  otherwise  than  upon  rates  not  greatly  higher  than 
his  competitors.  This  principle  is  similar  to  the  one  that  justi- 
fies a  rate  basis  made  to  meet  market  competition.  A  thing  may 
grow  or  be  mined  in  widely  dift"erent  localities,  and  the  sale  of 
the  thing  may  be  in  the  same  market.  Obviously  that  this  mar- 
ket may  have  the  benefit  of  competition  and  that  producing  lo- 
calities may  have  the  benefit  of  a  market,  distance  can  not  be 
made  an  absolute  measure  for  the  rates. 

So  the  public  interest  must  not  be  disregarded  in  determining 
what  this  public  agency  shall  receive  for  performing  the  duties 
which  society  has  farmed  out  to  it.  Rates  must  not  be  so  ad- 
justed as  to  deprive  the  public  of  the  service,  commodities  must 
be  moved  and  they  can  not  be  moved  if  the  charge  therefor  ex- 
ceeds the  value  to  be  derived  from  the  movement.    One  producer 


§  131.]  AIusT  Be  Reasoxable.  227 

must  not  be  permitted  a  monopoly  in  serving  the  public.  That 
charges  may  not  exceed  the  value  of  the  service  is  an  economic 
law  depending  upon  neither  court  nor  commission  for  its  en- 
forcement. 

Carriers  may  with  propriety  and  for  the  good  of  the  general 
public  make  rates  barely  more  than  the  cost  of  the  particular 
movement,  in  order  to  develop  industries,  create  and  maintain 
competition  and  serve  those  who  because  of  their  location  distant 
from  the  point  of  production  can  not  be  otherwise  served. 
Rate-making  tribunals  may  not  make  rates  so  low  as  to  deprive 
private  capital  of  a  substantial  return  on  the  fair  value  of  the 
property  devoted  to  the  public  use. 

While  long  existing  wrongs  do  not  become  rights  and  no  one 
can  have  a  vested  interest  in  a  wrong,  the  fact  that  in  the  slow 
evolution  toward  a  science  of  rate-making  there  have  grown  up 
rate  situations  inconsistent  with  the  principles  which  must  exist 
when  there  is  such  a  science,  does  not  justify  an  abrupt  and 
radical  alteration  of  these  situations.  Existing  conditions  are 
facts  which  must  be  recognized  in  the  application  of  all  abstract 
economic  principles,  and  while  the  principle  is  not  destroyed  by 
such  recognition,  it  may  be  inapplicable  to  the  particular  situa- 
tion. 

To  determine  what  is  a  reasonable  rate,  the  law  must  be  ap- 
plied, economics  considered  and  ethics  invoked,  and  while  the 
facts  to  be  weighed  are  multitudinous  and  the  scientific  princi- 
ples few,  we  may  say  that  it  is  not  fanciful  to  anticipate  that  a 
system  of  rate-making  will  be  evolved  which  will  approach  jus- 
tice. Shippers  and  carriers  contending  each  with  the  other,  some- 
times selfishly,  but  not  infrequently  with  an  earnest  desire  for  a 
right  solution,  presenting  their  theories  to  a  disinterested  and 
unbiased  tribunal,  "appointed  by  law  and  informed  by  experi- 
ence," may  furnish  data  which,  being  sifted,  studied  and  classi- 
fied in  its  reports,  will  enable  that  tribunal  to  solve  the  problem. 


CHAPTER  IV. 

Equality  in  Rates. 

§  132.  Scope    of    Chapter. 

133.  Common  Law  as  to   Equality  in  Rates  by  Carriers. 

134.  Same    Subject.      Damages. 

135.  Comparison  of  the   English   Railway  and   Canal   Act  with   the 

Act  to  Regulate  Commerce. 

136.  Discrimination    Forbidden. 

137.  Discrimination    against    Individuals. 

138.  Same    Subject. 

139.  Same   Subject.      Construction   by   the   Commission. 

140.  Same    Subject.     Allowances   to    Shippers. 

141.  Trap  ■  Car   Service. 

142.  Peddler   Cars. 

143.  Car    Spotting. 

144.  Undue  Preferences  in  Favor  of  Persons  or  Localities. 

145.  Same    Subject.      Application    of    Section    Made    by    the    Com- 

mission. 

146.  Discrimination    against    Traffic. 

147.  Same    Subject.      Discrimination    Beyond    the    Control    of    the 

Carrier. 

148.  Facilities   for   Literchange   of  Traffic   and    Rites   and   Charges 

to    Connecting    Lines    Must    Be    without    Undue    or   L'nrea- 
sonable    Preference. 

149.  Same   Subject.     Statute. 

150.  Same   Subject.     Statute  and   Proviso. 

151.  Through   Routes   and  Joint  Rates. 

152.  Discrimination    bj^     Charging    More     for    a     Shorter     than     a 

Longer    Haul. 

153.  Long   and   Shore   Haul.      Old   Law   Construed.      Definite   Con- 

struction. 

154.  Long  and  Short  Haul  Clause  under  Act  of  1910. 

155.  Fourth    Section.      Relationship    between    Through    Rates    and 

Intermediate    Rates. 

156.  Discrimination  between  Car  Loads  and  Less  than  Car  Loads. 

157.  Bulked    Shipments. 

158.  Car   Loads,   Ownership   of. 

159.  Train    Loads. 

160.  Classification    of    Commodities    Should    Be    without    Discrimi- 

nation. 

161.  Uniform    Classification. 

162.  Power  of  the   Commission   over   Classification. 

163.  Milling   in   Transit. 

164.  Rebilling. 

228 


1 


§  132.]  Equality  in  Rates.  229 

165.  RebilHng — Found   Illegal. 

166.  Rebilling   Illegal   Onlj-   When   Unjustly   Discriminatory. 

167.  Rebilling.     Conclusion. 

168.  Payments    to    Elevators. 

169.  Transit   Privileges — Generally. 

170.  Allow^ances  to  Tap  Line  Railroads. 

171.  Allowances   to   Industrial   Tracks. 

172.  Illegal    for   Carriers   to   Transport    Commodities    Produced    or 

Owned  by  Them   or  in  Which   They   Are   Interested. 

173.  Commodities   Clause  of  Act  of  1906. 

174.  Cars   Must   Be   Furnished  without  Discrimination. 

175.  Same    Subject.      Principles   Applied   by    the    Commission. 

176.  Freight   Charges   Must   Be   Collected   without  Discrimination. 

177.  Right  of  Carrier  to  Route   Shipments   Bej^ond   Its  Own  Ter- 

minus. 

178.  Discrimination    in    Billing. 

179.  Tariffs  of  Rates   Must  Be   Printed,   Posted  and   Maintained. 

180.  Same    Subject.      Misquoting    Rates. 

181.  Different  Rates   over  the   Same  Line  in  Opposite   Directions. 

182.  D'iscrimination   by    Granting   Free   Service. 

183.  Basing   Points,    Group   Rates   and   Zone   Rates. 

184.  How  Far  a   Rate   Made   by  a   State   Relieves   a   Carrier   from 

the  Duty  to  Serve  Communities  with  Legal   Equality. 

185.  Commutation,   Mileage   and   Party   Rate   Tickets. 

186.  Rebates. 

187.  Same  Subject.     Corporation  Punishable. 

188.  Summary. 

§  132.  Scope  of  Chapter. — A  rate  may  be  reasonable,  and 
yet.  because  of  its  relation  to  other  rates,  unlawful  as  violative  of 
the  provisions  of  the  Act  to  Regulate  Commerce  requiring  a  just 
equality  in  rates. 

Many  of  the  facts  affecting  the  reasonableness  of  rates  must 
be  considered  in  determining  whether  or  not  a  rate  is  unlawfully 
discriminatory  or  preferential.  While  this  is  true,  there  are  cer- 
tain principles  which  have  been  specially  applied  to  the  question 
of  equality  in  rates.  It  is  the  purpose  of  this  chapter  to  state 
these  principles  with  the  application  thereof  that  has  been  made, 
and  to  deduce  therefrom,  to  the  'extent  that  may  be,  such  rules  as 
can  be  legally  and  properly  applied.  In  doing  so,  it  must  not  be 
forgotten  that  the  facts  to  be  considered  are  numerous  and  of 
constantly  varying  force,  that  a  definite  measure  for  the  deter- 
mination of  the  legality  of  a  rate  has  not  been  fixed  and  that  a 
flexible  judgment  must  be  applied  to  situations  as  they  arise,  and 
that  long  established  and  generally  accepted  conditions  can  not 


230  Equality  in  Rates.  [§  133. 

be  abruptly  changed,  but  that  slow  evolution  is  the  concomitant 
of  rate  regulation. 
§  133.  Common  Law  as  to  Equality  in  Rates  by  Carriers. 

— The  common  law  rule  as  to  the  reasonableness  of  rates  we  have 
seen  supra,  sec.  61,  was  undisputed.  Equality  in  rates  was  not  so 
definitely  provided  for  in  that  system  of  laws,  and  it  has  been 
doubted  whether  or  not  a  carrier  was  bound  to  charge  equal  rates 
to  all  its  customers.  Discussing  this  question  ]\lr.  Justice  Brown 
said:  ^ 

"Prior  to  the  enactment  of  the  act  of  February  4,  1887  (24 
Stat,  at  L.  379),  to  regulate  commerce,  commonly  known  as  the 
Interstate  Commerce  Act,  railway  traffic  in  this  country  was 
regulated,  by  the  principles  of  the  common  law  applicable  to 
common  carriers,  which  demanded  little  more  than  that  they 
should  carry,  for  all  persons  who  applied,  in  the  order  in  which 
the  goods  were  delivered  at  the  particular  station,  and  that  their 
charges  for  transportation  should  be  reasonable.  It  was  even 
doubted  whether  they  were  bound  to  make  the  same  charge  to 
all  persons  for  the  same  service :  (  Fitchburg  R.  Co.  z'.  Gage, 
12  Gray,  393;  Baxendale  v.  Eastern  Co-unties  R.  Co.,  4  C.  B.  N. 
S.  63;  Great  Western  R.  Co.  r.  Sutton,  L.  R.  4  H.  L.  226,  237; 
Ex  parte  Benson,  18  S.  C.  38;  Johnson  v.  Pensacola  &  P.  R.  Co., 
16  Fla.  623  )  ;  though  the  weight  of  authority  in  this  country  was 
in  favor  of  an  equality  of  charge  to  all  persons  for  similar  serv- 
ices." 

That  the  common  law  required  equality  of  service  and  charges 
under  the  same  or  similar  circumstances  more  clearly  appears 
from  a  subsequent  decision  of  the  Supreme  Court  in  Western 
Union  Tel.  Co.  t'.  Call  Publishing  Co.,-  where  Mr.  Justice  Brewer 
said : 

"Common  carriers,  whether  engaged  in  interstate  commerce 
or  in  that  wholly  within  the  state,  are  performing  a  public  serv- 
ice. They  are  endowed  by  the  state  with  some  of  its  sovereign 
powers,  such  as  the  right  of  eminent  domain,  and  so  endowed 
by  reason  of  the  public  service  they  render.  As  a  consequence 
of  this,  all  individuals  have  equal  rights  both  in  respect  to  serv- 

^  Int.    Com.    Com.   v.    Baltimore  "Western      Union     Tel.     Co.    ''. 

&    O.    R.    Co.,    145    U.    S.    263.    31)  Call  Publishing  Co..  ISl  U.  S.  92, 

L.    Ed.   699,    703,    12    Sup.    Ct.    S44.  45   L.   Ed.  765.  21   Sup.   Ct.  561. 
See  3   Fed.   Stat.  Ann.  813. 


§  134.]  Equality  in  Rates.  23 i 

ice  and  charges.  Of  course,  such  equahty  of  right  does  not 
prevent  differences  in  the  modes  and  kinds  of  service  and  dif- 
ferent charges  based  thereon.  There  is  no  cast  iron  line  of  uni- 
formity which  prevents  a  charge  irom  being  above  or  below  a 
particular  sum,  or  recjuires  that  the  service  shall  be  exactly  along 
the  same  lines.  But  that  principle  of  equality  does  forbid  any 
dift'erence  in  charge  which  is  not  based  upon  difference  in  service, 
and,  even  when  based  upon  difference  of  service,  must  have  some 
reasonable  relation  to  the  amount  of  difference,  and  can  not  be 
so  great  as  to  produce  an  unjust  discrimination.  To  afifirm  that 
a  condition  of  things  exists  under  which  common  carriers  any- 
wdiere  in  the  country,  engaged  in  any  form  of  transportation,  are 
relieved  from  the  burdens  of  these  obligations,  is  a  proposition 
which,  to  say  the  least,  is  startling." 

Further  in  the  opinion  it  was  stated  that  "the  principles  of 
the  common  law  are  operative  upon  all  interstate  commercial 
transactions,  except  so  far  as  they  are  modified  by  congressional 
action,"  and,  we  may  conclude,  that  such  principles  required 
"equal  rights  both  in  respect  to  service  and  charges,"  when  the 
circumstances  and  conditions  were  the  same;  and  where  the  cir- 
cumstances and  conditions  were  dift'erent,  the  difference  in  serv- 
ices and  charges  should  bear  a  reasonable  relation  thereto. 

§  134.  Same  Subject — Damages. — In  the  Parsons  case  ^  the 
question  discussed  was  not  the  right  to  "equality  of  charge  *  *  * 
for  similar  services,"  but  that  opinion  had  reference  to  plaintiff's 
right  to  recover  damages  under  the  special  facts  there  involved. 
That  inequality  of  charges  for  similar  services  was  wrong  was 
not  questioned  for,  said  the  court:  "Before  any  party  can  re- 
cover under  the  act  he  must  show,  not  merely  the  wrong  of  the 
carrier,  but  that  that  wrong  has  in  fact  operated  to  his  injury.  If 
he  had  shipped  to  New^  York  and  been  charged  local  rates  he 
might  have  recovered  any  excess  thereon  over  through  rates. 
He  did  not  ship  to  New  York  and  yet  seeks  to  recover  the  extra 
sum  he  might  have  been  charged  if  he  had  shipped." 

The  same  comment  applies  to  the  decision  in  the  Coal  case. 
That  case  was  based  upon  the  fact  that  the  carrier  had  given 
what  was  decided  to  be  a  rebate  to  certain  shippers  and  had  not 


'Parsons  v.   Chicago   &   N.  W.       231,    17   Sup.    Ct.   887. 
R.    Co.,    167   U.    S.   447,   42   L.    Ed. 


232  Equality  in  R.\tes.  [§  135. 

given  the  same  allowances  to  the  plaintiff  suing.  In  the  District 
Court  tlie  plaintiff  recovered/  and  the  recovery  was  sustained 
by  the  Circuit  Court  of  Appeals. ^  In  the  Supreme  Court  the 
judgment  of  the  Circuit  Court  of  Appeals  was  reversed  and  a 
new  trial  ordered,  not  because  the  plaintiff  did  not  have  a  right 
of  action,  but  because  it  had  not  shown  that  it  had  suffered  legal 
damages.*' 

Neither  of  these  cases  denies  that  at  common  law  a  shipper 
had  a  right  to  equality  of  charges  under  similar  circumstances, 
and  in  this  respect  neither  conflicts  with  the  statement  of  ]\Ir. 
Justice  Brown  quoted  in  the  preceding  section.  That  equality 
of  service  from  a  public  service  company  or  corporation  was  a 
right  at  common  law,  seems  to  be,  so  far  as  the  Supreme  Court 
of  the  United  States  has  spoken,  undisputed.  In  order  to  recover 
damages  for  an  invasion  of  this  right  proof  of  the  fact  of  having 
suffered  legal  damages  is  necessary. 

Where  as  under  the  Constitution  of  the  United  States  a  sched- 
ule of  rates  may  not  be  fixed  less  than  will  yield  a  fair  return 
on  the  property  employed  in  the  public  use,  every  customer  of 
a  public  carrier  is,  to  some  extent,  interested  in  what  is  charged 
every  one  else.  It  is  true  th-at  an  individual  may  not  have  a 
cause  of  action  so  long  as  what  he  pays  is  reasonable,  unless  the 
preference  granted  others  damages  him. 

Neither  under  our  statute  nor  under  the  common  law  is  mere 
discrimination  prohibited,  but  it  will  be  found  upon  an  exami- 
nation of  the  English  authorities,  that  where  the  circumstances 
and  conditions  were  the  same  those  who  dealt  with  a  common 
carrier  were  entitled  to  equal  treatment. 

§  135.  Comparison  of  the  English  Railway  and  Canal 
Act  with  the  Act  to  Regulate  Commerce. — The  remark  of  the 
Supreme  Court  in  Int.  Com.  Com.  v.  Baltimore  &  O.  R.  Co.," 
"that  Congress  in  adopting  the  language  of  the  English  act,  had  in 
mind  the    construction    given  to    these    words    by    the  English 

^  International  Coal  Mining  Co.  57    L.    Ed.    1446,   33    Sup.    Ct.   S93. 

V.  Pennsylvania  R.   Co.,  162   Fed.  See,   following  this  case   and  cit- 

996.  ing      authorities,      New      Orleans 

°  Pennsylvania   R.    Co.  r.   Inter-  Board   of  Trade  v.   Illinois   C.   R. 

national  Coal   Co.,   173   Fed.   1.  97  C.  29   I.   C.  C.  32. 
C.  C.  A.  383.  ■  Int.    Com.    Com.   v.    Baltimore 

'Pennsylvania   R.   Co.  v.   Inter-  &    O.    R.    Co.,    145    U.    S.    263.   36 

national   Coal   Co.,  230  U.   S.   184,  L.    Ed.   699,   703,   12   Sup    Ct.   844. 


§  135.]  Equality  in  Rates.  233 

courts"  had  reference  to  section  three  of  our  act,  although  to  a 
lesser  extent  the  same  could  be  said  of  section  two. 

Section  two  of  the  act  of  February  4,  1887,  post,  §  345, 
known  as  the  unjust  discrimination  clause,  is  based  upon  §  90 
of  the  English  Railway  Clauses  Act  of  1845.^  The  section  of 
the  English  act,  called  the  Equality  Clause,  provided  that  "tolls 
be  at  all  times  charged  equally  to  all  persons,  and  after  the 
same  rate,  whether  per  ton  per  mile  or  otherwise,  in  respect  of 
all'  passengers,  and  of  all  goods  or  carriages  of  the  same  de- 
scription, and  conveyed  or  propelled  by  a  like  carriage  or  en- 
gine, passing  only  over  the  same  portion  of  the  line  of  railway 
under  the  same  circumstances."  Section  two  of  the  Interstate 
Commerce  Act  used  the  words  "under  substantially  similar  cir- 
cumstances and  conditions,"  which  phrase  is  not  so  exclusive  as 
the  words  of  the  English  act  which  requires  equality  only  when 
the  transportation  is  "over  the  same  portion  of  the  line  of  rail- 
way." The  American  act  is,  therefore,  broader  in  its  scope 
than  the  English  act,  but  each  act  recognizes  that  "different  cir- 
cumstances" may  justify  different  rates.  The  English  statute 
uses  the  word  "same"  before  "circumstances,"  ours  uses  the 
word  "similar."  This  diff'erence  and  the  broader  scope  of  the 
American  act  should  be  kept  in  mind  when  considering  the  Eng- 
lish decisions.  Section  two  of  the  English  Railway  and  Canal 
Traffic  Act  of  1854,''*  furnished  the  model  of  section  three  of 
our  act.i"  The  English  and  the  American  sections  just  referred 
to  are  each  designated  as  the  "undue  preference  clause."  The 
fourth  section  of  the  American  act,  known  as  the  "long  and 
short  haul  clause,"  was  unlike  any  section  of  the  English  act 
prior  to  1887.  In  1888  the  Railway  and  Canal  Traffic  Act  of 
that  year  gave  the  English  Commissioners  power  to  prohibit  a 
higher  charge  for  a  less  distance  where  the  service  is  similar. 
The  provision  is  the  third  paragraph  of  section  twenty-seven  and 
reads  as  follows  :  ^^ 

'Browne    &   Theobald    Law    of  ^^ Post,   Sec.   346,   note   7,  supra, 

Railways  (English),  p.  312.    Tram-  this  chapter. 

mell,   Railroad   Commissioners  of  "  Browne  &  Theobald,  supra,  p. 

Georgia  v.   Clyde   S.   S.   Co.,   5   I.  771;    see    also    sections    25    to    27 

C.    C.   324,   4   I.   C.   R.    120,   140.  English  Railway  and  Canal  Traf- 

'  Browne  &  Theobald,  supra,  p.  fie  Act  of  1888;  Browne  &  Theo- 

405.        Trammell       Case,       supra,  bald,   pp.   765   to   772. 
note  5,   this  chapter. 


234  Equality  in  Rates.  [§  136. 

"The  court  or  the  commissioners  shall  have  the  power  to  di- 
rect that  no  higher  charge  shall  be  made  to  any  person  for  ser- 
vices in  respect  of  merchandise  carried  over  a  less  distance  than 
is  made  to  any  other  person  for  similar  services  in  respect  of 
the  like  description  and  quantity  of  merchandise  carried  over  a 
greater  distance  on  the  same  line  of  railway." 

This  comparison  may  be  concluded  by  quoting  the  language 
of  the  commission  as  follows :  ^^ 

"In  a  case  purely  of  alleged  undue  preference  or  prejudice 
the  English  cases  have  direct  application.  Even  in  cases  under 
our  second  and  fourth  sections,  English  cases  brought  under  the 
undue  preference  clause  in  which  the  decision  has  held  undue 
preference  to  exist,  have  value  as  showing  how  strictly  the  Eng- 
lish commission  or  court  has  applied  the  broader  language  of  the 
clause  to  a. particular  set  of  facts,  but  when  English  decisions 
under  the  undue  preference  clause  are  cited  by  a  carrier  in  jus- 
tification of  its  action  under  the  strict  language  of  our  second 
and  fourth  sections,  the  citations  have  greatly  diminished  force. 
These  sections  apply  only  against  rates  in  specific  cases,  but  the 
undue  preference  clause  or  third  section  is  inclusive ;  it  applies 
both  to  rates  and  facilities,  and  says  generally  to  the  carrier, 
you  shall  not  in  any  manner  unduly  prefer  one  person  or  kind 
of  traffic  over  another,  and  leave  it  to  the  commission  or  the 
court  to  say  when  the  undue  preference  is  given.  In  the  second 
and  fourth  sections  what  is  unlawful  is  clearly  defined,  the  cir- 
cumstances and  conditions  of  the  transportation  being  similar 
in  substance.  We  think,  therefore,  that  while  English  cases  are 
valuable  as  defining  undue  preference  or  prejudice  their  value 
is  greatly  limited  in  cases  where  the  statute  itself  describes  the 
otTense  it  declares  unlawful." 

§  136.  Discrimination  Forbidden.— Equality  of  rights  and 
privileges  under  "substantially  similar  circumstances  and  con- 
ditions" is  sought  to  be  guaranteed  shippers  and  "particular  de- 
scriptions of  traffic"  by  sections  two,  three  and  four  of  the  act 
to  regulate  commerce.  These  sections,  which  were  in  the  orig- 
inal act  and  have  been  retained  in  the  amendments,  announce 
the  principles  of  law  fixing  equality  of  charges  and  service  by 
common  carriers.     These  principles  are  supported  and  enforced 

'^Trammell,  Railroad  Commis-  Co.,  5  I.  C.  C.  324,  4  I.  C.  R.  120. 
sion    of    Georgia    v.    Clyde    S.    S.       143,   144. 


§  136.]  Equality  in  Rates.  235 

by  the  provisions  of  the  act  to  regulate  commerce  which  pro- 
hibit free  passes,  except  under  certain  prescribed  limitations, 
prohibit  carriers  from  transporting  commodities  in  which  they 
are  interested  ;  require  the  making  of  switch  connections ;  mak- 
ing criminal  the  pooling  of  freights ;  require  schedules  of  rates 
to  be  printed,  posted  and  maintained ;  prevent  changes  in  rates 
without  at  least  thirty  days  notice  unless  where  special  permission 
is  given  to  make  changes  on  less  notice ;  provide  punishment  for 
granting,  receiving,  or  inducing  the  payment  of  rebates  ;  punish 
false  billing;  require  witnesses  to  testify,  and  prescribe  methods 
of  procedure  for  the  public  enforcement  of  the  act  and  the  pro- 
tection of  individuals  who  may  suffer  from  its  violation. 

Inequality  of  charges  is  an  evil  that  is  more  readily  seen  and 
Iveenly  felt  than  are  charges  unjustly  high.  A  difference  in  a 
freight  charge  of  a  few  cents  per  hundred  pounds  on  a  partic- 
ular commodity  may  mark  the  line  between  a  reasonable  and 
an  unreasonable  rate  and  the  higher  charge  may  be  unjust  and 
unreasonable.  The  injustice,  however,  is  so  distributed  that  no 
one  feels  seriously  hurt  and  no  complaint  is  made.  A  prefer- 
ential or  discriminatory  charge  may  make  or  unmake  cities  and 
individuals  and  may  hurt  some  to  the  benefit  of  others.  Such 
charges,  therefore,  are  not  only  unjust  and  contrary  to  the  very 
spirit  of  the  American  people,  but  they  are  sufficiently  injurious 
to  arouse  to  action  those  who  are  injured.  The  consumer  usu- 
ally pays  the  unjustly  high  rate,  but  the  shipper  or  the  com- 
munity is  injured,  sometimes  ruined,  by  the  discriminatory  rate. 
Under  the  once  prevalent  system  of  rebating,  businesses  were 
built  up  or  destroyed  by  carriers.  Even  since  rebating  has  prac- 
tically ceased,  cities  are  helped  or  injured  by  privileges  given 
the  one  and  withheld  from  the  other.  Rarely  would  carriers 
have  complaints  of  rates  if  all  rates  and  practices  w^ere  ad- 
justed without  undue  discrimination  and  unjust  preference. 
Speaking  of  the  evils  existing  before  the  act  to  regulate  com- 
merce was  passed  by  Congress  and  which  evils  the  states  had  in- 
effectually attempted  to  remedy,  the  Supreme  Court  said :  ^^' 

"These  evils  ordinarily  took  the  shape  of  inequality  of 
charges  made,  or  of  facilities  furnished,  and  were  usually  dic- 
tated by  or  tolerated  for  the  promotion  of  the  interests  of  the 

"  Int.  Com.  Com.  v.  Baltimore  L.  Ed.  699,  70.3,  12  Sup.  Ct.  844. 
&    O.    R.    Co.,    145    U.    S.    2G3,    30 


236  Equality  in  Rates.  [§  137. 

officers  of  the  corporation  or  of  the  corporation  itself,  or  for  the 
benefit  of  some  favored  persons  -at  the  expense  of  others,  or  of 
some  particular  locality  or  community,  or  of  some  local  trade 
or  commercial  connection,  or  for  the  destruction  or  crippling  of 
some  rival  or  hostile  line." 

The  problem  of  giving  shippers  a  just  equality  is  not  an  easy 
one  of  solution  by  the  carriers.  It  is  easier  to  know  what  is  just 
equality  than  to  adopt  such  rates  and  practices  as  will  accom- 
plish that  end.  Long  existing  injustice  is  hard  to  dislodge.  A 
particular  discrimination  that  has  long  continued  in  favor  of 
a  community,  has  become  in  the  eyes  of  that  community  a  vested 
right.  It  is  hard  for  the  beneficiary  of  a  wrong  to  see  that 
wrongs  do  not  become  rights  by  mere  lapse  of  time.  Carriers 
frequently  welcome  the  aid  of  the  commission  to  help  rid  them- 
selves of  practices  that  are  unjustly  discriminatory. 

§  137.  Discrimination  against  Individuals. — Section  two 
of  the  act  to  regulate  commerce,  post  section  345,  was  intended  to 
prevent  different  charges  for  different  persons  for  a  like  and 
contemporaneous  service  to  a  like  kind  of  traffic  under  sub- 
stantially similar  circumstances  and  conditions.  Under  the 
"same  circumstances"  and  "goods  of  the  same  description"  used 
in  the  English  law  are  not  used  with  reference  to  the  contents 
of  the  parcels  but  to  the  parcels  themselves,  that  is,  like  or  differ- 
ent for  the  purposes  of  carriage.  They  are  also  used  with  ref- 
erence to  the  conveyance  of  goods  and  not  to  the  persons  them- 
selves.^"* This  means,  and  the  act  to  regulate  commerce  has  also 
been  so  construed,  that  competition,  however  great,  can  not  jus- 
tify charges  to  one  person  greater  than  those  to  another.  Two 
shippers,  shipping  a  like  kind  of  traffic  at  the  same  time,  over 
the  same  road,  are  entitled  to  the  same  rate.  It  makes  no  dif- 
ference that  one  may  be  in  a  position  to  ship  over  another  line, 
or  that  his  total  shipments  may  greatly  exceed  those  of  the  other. 
In  Wight  v.  United  States, ^^  the  Supreme  Court,  speaking  of 
the  phrase  "under  substantially  similar  circumstances  and  con- 
ditions," said : 

"For  this  case,  it  is  enough  to  hold  that  that  phrase  as  found 

"  G.   W.   Ry.    Co.   V.   Sutton.   38  Ct.  S22.     See  also  Int.  Com.  Com. 

L.  J.  Ex.  177.  L.  R.  4  H.  L.  226,  v.   Detroit   G.   H.   &  M.   Ry.   Co., 

22    L.   T.    43,    IS   W.    R.   92.  167   U.   S.   633.   42   L.   Ed.  306,  310, 

"Wight   V.   United    States,    167  17    Sup.    Ct.    986;    Re    Restricted 

U.   S.  512,   42  L.   Ed.  258,   17   Sup.  Rates,  20  I.   C.   C.  426,  433. 


§  137.]  Equality  [N  Raths.  237 

in  section  2,  refers  to  the  matter  of  carriage,  and  does  not  include 
competition." 

In  the  Troy  Alabama  case/*'  the  Supreme  Court  advanced  the 
same  ruling  as  follows  : 

"To  prevent  misapprehension,  it  should  be  stated  that  the  con- 
clusion to  which  we  are  led  by  these  cases,  that,  in  applying  the 
provisions  of  the  3d  and  4th  sections  of  the  act,  which  make  it 
unlawful  for  common  carriers  to  make  or  give  any  undue  or  un- 
reasonable preference  or  advantage  to  any  particular  person  or 
locality,  or  to  charge  or  receive  any  greater  compensation  in  the 
aggregate  for  the  transportation  of  passengers  or  of  like  kind  of 
property,  under  substantially  similar  circumstances  and  condi- 
tions, for  a  shorter  than  a  longer  distance  over  the  same  line,  in 
the  same  direction,  competition  which  affects  rates  is  one  of  the 
matters  to  be  considered,  is  not  applicable  to  the  2d  section  of 
the  act. 

"As  we  have  shown  in  the  recent  case  of  Wight  z'.  United 
States,  167  U.  S.  512  (42  L.  Ed.  258,  17  Sup.  Ct.  822),  the  pur- 
pose of  the  second  section  is  to  enforce  equality  between  ship- 
pers over  the  same  line,  and  to  prohibit  any  rebate  or  other  de- 
vice by  which  two  shippers,  shipping  over  the  same  line,  the  same 
distance,  under  the  same  circumstances  of  carriage,  are  com- 
pelled to  pay  different  prices  therefor,  and  we  there  held  that 
the  phrase  "under  substantially  similar  circumstances  and  con- 
ditions," as  used  in  the  second  section,  refers  to  the  matter  of 
carriage,  and  does  not  include  competition  between  rival  routes. 

"This  view  is  not  open  to  the  criticism  that  different  meanings 
are  attributed  to  the  same  words  when  found  in  different  sections 
of  the  act ;  for  what  we  hold  is  that,  as  the  purposes  of  the  sev- 
eral sections  are  different,  the  phrase  under  consideration  must 
be  read,  in  the  second  section,  as  restricted  to  the  case  of  ship- 
pers over  the  same  road,  thus  leaving  no  room  for  the  operation 
of  competition,  but  that  in  the  other  sections,  which  cover  the 
entire  tract  of  interstate  and  foreign  commerce,  a  meaning  must 
be  given  to  the  phrase  wide  enough  to  include  all  the  facts  that 


"Int.    Com.    Com.    v.    Alabama  C.  C.  A.  383;  reversed  on  another 

M.   R.    Co.,   168   U.   S.   144,   42   L.  point.  Pennsylvania  R.  Co.  v.  In- 

Ed.  414,  18  Sup.  Ct.  45;  Pennsyl-  ternational   Coal  Mining  Co.,  230 

vania     R.     Co.     v.     International  U.-  S.  184,  57  L.  Ed.  1446,  33  Sup. 

Coal   Mining   Co.,   173   Fed.   1,  97  Ct.   893. 


238  Equality  in  Rates.  [§  138. 

liave  a  legitimate  bearing  on  the  situation — among  which  we  find 
the  fact  of  competition  when  it  affects  rates." 

Kirkman,  in  the  Science  of  Railways,  vigorously  argues 
against  any  governmental  regulation  of  railroads,  but  he  admits 
that  there  is  no  justice  in  distinguishing  between  persons.  He 
says :  ^' 

"If  a  railroad  refuses  to  one  shipper  what  it  concedes  to  an- 
other, everything  being  alike,  article,  place,  time,  quantity,  risk, 
and  service,  that  is  not  discrimination,  but  robbery.  Petty  in- 
stances of  this  kind  have  occurred  in  the  history  of  railway  man- 
agement. But  they  are  only  instances.  They  are.  however,  the 
stock  in  trade  of  railway  critics.  They  are  unworthy  of  no- 
tice. They  form  no  appreciable  element,  and  are  not  to  be  com- 
pared for  a  moment  to  the  benefits  that  grow  out  of  the  ability 
of  carriers  to  adapt  their  properties  to  the  varying  needs  of 
those  they  serve." 

§  138.  Same  Subject. — The  equality  required  by  section  two 
of  the  Act  is  as  to  all  persons  for  performing  "a  like  ai"fd  con- 
temporaneous service"  relating  to  a  "like  kind  of  traffic"  trans- 
ported "under  substantially  similar  circumstances  and  condi- 
tions." The  three  quoted  provisions  are  limitations  on  or  ex- 
ceptions to  the  general  principle  of  equality.  What  then  is 
meant  by  these  phrases?  In  Mitchell  Coal  &  Coke  Co.  z'-  Penn. 
R.  Co.i^  the  contention  was  made  that  "contemporaneous"  must 
be  confined  to  shipments  made  practically  at  the  same  moment  of 
time,  and  that  shipments  as  much  as  a  month  apart  were  too  re- 
mote to  come  within  the  meaning  of  the  statute.  Obviously 
such  a  construction  would  destroy  the  practical  effect  of  the  law, 
and  the  court  properly  held  that  the  word  referred  to  rates  in  ef- 
fect and  meant  "at  the  same  time  with  the  offending  rates."  In 
affirming  this  case  in  part,  the  Supreme  Court  recognized  and 
applied  this  construction. ^^ 

"Like  kind  of  traffic"  permits  a  classification  of  different  com- 
modities but  the  phrase  refers  to  the  traffic  itself,  and  not  to  the 
use  to  which  it  should  be  put  nor  to  its  ownership. 

In  Sec.  89  chapter  three  hereof  is  discussed  the  cases  refer- 
ring to  the  use  of  a  commodity.    Under  the  holdings  of  the  Com- 

"Vol.  8,  p.  110.  ^'Mitchell   Coal  &  Coke  Co.  v. 

"  Mitchell  Coal  Co.  v.  Penn^yl-       Pennsylvania    R.    Co.,    230    U.    S. 

vania   R.    Co.,    181    Fed.    403,    411.       247,   57   L.    Ed.    1472.   33   Sup.   Ct. 

916. 


§  139.]  Equality  in  Rates.  239 

mission  and  the  decisions  of  the  courts,  in  the  words  "Hke  kinds 
of  traffic,"  hke  modifies  traffic  and  not  the  use  to  which  the  traf- 
fic may  be  put.-*^ 

How  "similar  circumstances  and  conditions"  has  been  con- 
strued is  shown  in  the  next  preceding  section.  That  diflferent 
persons  may  own  the  commodities  shipped  constitutes  no  differ- 
ent circumstance  or  condition. -^  The  words  relate  to  the  cir- 
cumstance of  carriage  only.--  The  provision  requires  the  same 
equality  as  to  the  incidents  of  transportation,  the  accessorial 
services;  thus  it  is  illegal  to  give  a  shipper  a  preference  by  the 
devise  of  leasing  to  him  at  a  nominal  charge  land  used  in  the 
transportation  of  his  commodities.--^  So  it  is  illegal  to  concede 
a  favored  shipper  the  privilege  of  giving  notes  in  payment  of 
freight  due.--*  The  rule  of  equality  extends  to  demurrage.-^ 
The  provisions  of  the  Elkins  Act  prohibiting  rebates  will  be 
discussed  in  a  subsequent  section. -•'' 

§  139.  Same  Subject — Construction  by  the  Commission. 
— In  Capital  City  Gas  Co.  z'.  Central  \\  R.  Co.-"  Mr.  Commis- 
sioner Knapp,  speaking  for  the  commission  and  having  under 
consideration  rates,  one  of  which  was  made  for  coal  when  de- 
livered to  a  connecting  carrier  for  "railroad  supply,"  and  the 
other  and  higher  of  which  was  a  combination  rate  applicable  to 
coal  used  for  commercial  purposes  and  purposes  other  than  "rail- 
road supply,"  said : 

"When  bituminous  coal  is  carried  by  defendants  from  Nor- 
wood to  Montpelier  the  service  is  performed  under  substantially 

""  Int.    Com.    Com.  v.   Baltimore  national     Coal     Mining     Co.,     173 

&    O.    R.    Co.,    225    U.    S.    326,    57  Fed.     1.     97     C.     C.    A.    383.      See 

L.  Ed.  1107,  32  $up.  Ct.  742.     See  Same   Case,   230  U.   S.   184,   57   L. 

also     Business     Men's     Ass'n     v.  Ed.   1446.   33   Sup.   Ct.   893. 

Chicago,   St.   P.   M.   &  O.   R.   Co.,  "^Southern      Pacific       Terminal 

2  I.   C.  C.  52,  2  I.   C.  R.  41.  Co.  v.   Int.   Com.   Com.,  219  U.   S. 

-'  Int.   Com.   Com.  'v.   Delaware,  498,    55    L.    Ed.    310,    31    Sup.    Ct. 

L.   &  W.   Ry.   Co.,  220  U.   S.   235,  279. 

55    L.    Ed.    448,    31    Sup.    Ct.    392,  "■*  United  States  v.  Sunday  Creek 

reversing  Delaware,  L.  &  W.  Ry.  Co.,   194   Fed.   252;   affirmed   same 

Co.  V.   Int.   Com.   Com.,   166   Fed.  Styled    Case,   210   Fed.   747. 

499.     See  as   to  persons,   Re  Ad-  "^  Lehigh      Valley     R.      Co.     v. 

vances  on   Manganese  Ore,  25  I.  United  States,  188  Fed.  879. 

C.  C.  663,  668;   Re   Commutation  "^  Sec.    371. 

Tickets  to  School   Children,  27  T.  "  Capital   City   Gas   Co.  v.   Cen- 

C.  C.  144.  tral  Vermont  R.  Co.,  11   I.   C.  C. 

"Pennsylvania   R.  Co.  v.  Inter-  104,    105,    106,    107. 


240  •      Equality  in  Rates.  [§  13'^. 

similar  circumstances  and  conditions  whether  transported  for  a 
connecting  railroad  or  for   complainant   and   other  consumers.    * 

"We  are  constrained  to  hold  that  these  facts,  which  are 
wholly  undisputed,  establish  a  discrimination  forbidden  by  the 
second  section  of  the  act.  In  transporting  bituminous  coal  from 
Norwood  to  Montpelier  at  90  cents  a  ton  for  "railroad  supply" 
the  same  service  is  performed  and  the  circumstances  and  condi- 
tions of  carriage  are  the  same  in  every  material  effect  as  in  trans- 
porting coal  at  $1.85  per  ton  for  complainant  and  other  consign- 
ees. This  appears  to  be  conceded  since  no  proof  was  offered 
that  the  fact  is  otherwise.  It  follows,  as  we  think,  that  the  dif- 
ference in  rates  is  a  violation  of  the  statute. 

Wight  V.  United  States.  167  U.  S.  512.  42  L.  Ed.  258,  17  Sup. 
Ct.  Rep.  822 ;  Interstate  Commerce  Commission  v.  Alabama 
Midland  R.  Co.,  168  U.  S.  144,  166,  42  L.  Ed.  414,  423,  18  Sup. 
Ct.  Rep.  45. 

"In  the  former  case  it  was  held  that  the  phrase  'under  sub- 
stantially similar  circumstances  and  conditions,"  as  used  in  the 
second  section,  refers  to  the  matter  of  carriage,  and  the  decision 
therein  rendered,  as  explained  and  confirmed  in  the  subsequent 
case,  condemns  as  unlawful  the  discriminating  charges  here  con- 
sidered. It  is  not  permissible  under  this  section  for  two  or  more 
carriers  to  establish  a  joint  through  rate,  less  than  the  sum  of 
their  locals,  which  is  available  only  to  a  particular  shipper  or 
class  of  shippers,  while  denying  such  lower  rate  to  other  shippers 
of  like  traffic  between  the  same  points  of  origin  and  destina- 
tion. In  such  case  it  may  be  said  that  the  law  presumes  a  com- 
mon injury  to  those  compelled  to  pay  the  higher  rate  because  of 
the  concession  to  the  interest  favored.  If  those  defendants  ob- 
tain only  reasonable  returns  from  their  entire  coal  traffic,  it  may 
be  well  claimed  that  the  rates  charged  conplainant  and  other 
Montpelier  consumers  are  higher  than  they  would  be  but  for  the 
much  lower  rates  allowed  on  coal  for  "railroad  supply." 

"Moreover,  if  this  view  is  correct,  the  absence  of  actual  prej- 
udice to  complainant  would  not  excuse  the  defendants.  The 
most  salutary  law  may  doubtless  be  disregarded  in  some  cases 
without  injury  and  inflict  a  degree  of  hardship  in  other  cases 
by  its  enforcement.  Whatever  may  be  said  in  that  regard  in  the 
present  instance,  we  are  convinced,  upon  the  authority  of  the  de- 
cisions above  cited,  that  the  regulating  statute  does  not  permit 


140. 


Equality  in  Rates. 


241 


the  discrimination  shown  in  this  case  and  our  ruhng  must  so 
declare." 

The  discrimination  meant  by  the  Act  is  everything  that  may 
affect  the  shipper,  for,  says  the  Commission :  "That  one  ship- 
per may  not  enjoy  at  the  hands  of  a  carrier  advantages  that  are 
denied  to  other  shippers  is  a  principle  asserted  in  the  Act 
throughout  its  various  provisions,"28  or,  as  subsequently  stated 
by  the  Commission :  "The  fundamental  principle  of  this  Act, 
(the  Act  to  Regulate  Commerce),  as  so  often  stated  by  the  Su- 
preme Court,  is  one  of  fair  play."  -^ 

§  140.  Same  Subject — Allowances  to  Shippers. — Under 
the  amendment  of  June  29,  1906.  to  the  Act  to  Regulate  Com- 
merce, the  owner  of  property  transported  rendering  services  in 
connection  with  the  transportation  or  furnishing  an  instrumen- 
tality used  therein  is  entitled  to  charge  therefor.^o  Such  charge 
must  be  stated  in  the  published  tariff's,-^ ^  must  not  violate  any  of 
the  sections  of  the  Act  requiring  reasonable  and  non-discriminat- 
ing rates.  Whatever  allowances  are  made,  being  published  in  a 
tariff,  are  subject  to  complaint  to  the  Commission  and  may  be 
investigated  by '  the  Commission  on  its  own  initiative,  and  that 
tribunal  may  determine  what  allowance  is  legal  and  reasonable.^- 
Whether  or  not  the  amount  allowed  is  reasonable  must,  like  all 


^Brook-Rauch  Mill  &  Eleva- 
tor Co.  V.  Missouri  Pac.  Ry.  Co., 
17  I.  C.  C.  158,  164,  citing  Eichen- 
berg  V.  Southern  Pac.  Co.,  14  I. 
C.  C.  250,  which  latter  case  was 
approved  by  the  Supreme  Court 
in  Southern  Pac.  Terminal  Co.  v. 
Int.  Com.  Com.,  219  U.  S.  498, 
55  L.   Ed.  310,  .31  Sup.  Ct.  279. 

""  Mobile  Chamber  of  Com- 
merce V.  Mobile  &  O.  R.  Co.,  23 
I.  C.  C.  417,  426.  See  Kaufman 
Commercial  Club  v.  T.  &  N.  O. 
R.  Co.,  31  I.  C.  C.  167,  171,  where 
it  was  said:  "A  just  equality  of 
opportunity  for  shipper  and  lo- 
cality  is   required   by   law." 

'"  For  statute  see  Sec.  404,  post. 

"American  Sugar  Refining  Co. 
V.  Delaware,  L.  &  W.  Ry.  Co., 
200   Fed.   652.     While   there   have 


lieen  rulings  on  the  subject  of 
this  case  not  in  accord  with  the 
general  opinion  on  this  point,  the 
decision  is  correct.  See  Re  Al- 
lowances for  Transfer  of  Sugar, 
14  I.  C.  C.  619;  Federal  Sugar 
Refining  Co.  v.  B.  Baltimore  & 
O.  R.  Co.,  20  I.  C.  C.  200;  Balti- 
more &  O.  R.  Co.  V.  United 
States,  200  Fed.  779,  Opinion 
Commerce  Court  No.  38,  p.  499; 
United  States  v.  B.  &  O.  R.  Co., 
231  U.  S.  274,  58  L.  Ed.  218,  34 
Sup.  Ct.  75;  Langdon  v.  Pennsyl- 
vania  R.   Co.,   194   Fed  486,  496. 

^"  Suffern  Grain  Co.  v.  Illinois 
Cent.  R.  Co.,  22  I.  C.  C.  178,  183; 
Union  Pac.  R.  Co.  v.  Updike 
Grain  Co.,  222  U.  S.  215,  S18,  56 
L.    Ed.    171,   32   Sup.   Ct.   39. 


242  Equality  in  Rates.  [§  141. 

charges  relating  to  transportation,  be  determined  by  the  facts 
and  circumstances  in  each  particular  case  having  in  view  all  rele- 
vant principles  applicable  to  questions  relating  to  the  determina- 
tion of  the  reasonableness  and  validity  of  rates.  It  is  equally 
true  that  whether  or  not  a  particular  allowance  unjustly  dis- 
criminates against  other  shippers  presents  a  question  determi- 
nable from  the  particular  facts  applicable  to  the  special  case.  The 
Commission  may  not,  when  the  shipper  is  within  the  provisions 
of  the  statute,  deny  to  him  a  proper  allowance. 

The  shipper  who  owns  instrumentalities  used  in  transporta- 
tion or  who  is  in  a  position  to  render  services  in  connection  there- 
with, who  receives  compensation  for  his  services  or  pay  for  the 
use  of  his  instrumentalities,  can  not  be  said  to  be  unfairly  fa- 
vored so  long  as  the  allowance  or  pay  is  not  unreasonable  and  so 
long  as  others  rendering  like  services  or  furnishing  like  instru- 
mentalities are  treated  in  the  same  way. 

Examples  of  allowances  are,  for  compressing  cotton,^^  grain 
doors, ^^  elevation  of  grain, ^^  staking  cars,^'^  lighterage,^''  trans- 
portation by  tap  lines  and  industrial  lines.^*  The  question  will 
be  treated  more  in  detail  in  later  sections  of  this  chapter  where 
is  discussed  the  question  of  whether  or  not  the  specific  service  or 
instrumentality  upon  which  the  claim  for  allowance  is  based  jus- 
tifies any  allowance. 

§  141.  Trap  Car  Service. — The  Commission  has  defined  this 
service  as  follows :  ^9  "The  term  trap  or  ferry,  strictly  speaking, 
is  applied  to  a  car  placed  at  an  industry  or  commercial  house 


^'Merchants    Cotton    Compress  "United    States  v.   B.   &  O.   R. 

&  Storage  Co.  v.  Illinois  Cent.  R.  Co..   Federal    Sugar   Refining    Co. 

Co.,    17    I.    C.    C.    98;    Anderson,  Cas..    231    U.    S.    274,    58    L.    Ed. 

Clayton   &   Co.  v.   Chicago,  R.   I.  218.    34    Sup.    Ct.    75.      See    also 

&  P.   Ry.   Co.,  18   I.   C.   C.  340.  Lighterage    and    Storage    Regula- 

''  Balfour,     Guthrie     &     Co.     v.  tions    at    New    York,    35     I.     C. 

Oregon   W.    R.    &    N.    Co..    21    1.  C.  47. 

C.   C.  539.  ''Louisiana     &     P.     Ry.     Co.   v. 

''Union  Pac  R.  Co.  v.  Updike  United  States,  209  Fed.  244; 
Grain  Co.,  222  U.  S.  215,  56  L.  Tap  Line  Cases,  234  U.  S.  1,  58  L. 
Ed.  171,  32  Sup.  Ct.  39;  Traffic  Ed.  1185,  34  Sup.  Ct.  741;  Indus- 
Bureau  Merchants  Exchange  v.  trial  Railways  Case,  29  I.  C.  C. 
Chicago,  B.  &  Q.  R.  Co.,  22  I.  212;  Car  Spotting  Charges,  34  I. 
C.  C.  496,  C.   C.   609. 

^'Duluth  Log  Co.  V.  Minnesota  '"'Trap    or    Ferry    Car    Service 

&   I.   R.    Co.,    15    I.    C.   C.   627.  Charges.  34   I.   C.   C.   516. 


§  142.]  Equality  in  Rates.  243 

having  a  private  siding,  and  there  loaded  by  a  shipper  with  less- 
than-carload  shipments,  and  hauled  by  a  carrier  to  its  local 
freight  or  transfer  station  for  handling  and  forwarding  of  con- 
tents ;  and  also  is  applied  to  a  car  loaded  with  less-than-carload 
shipments  which  is  hauled  to  and  placed  upon  the  private  track 
of  an  industry  or  commercial  house  by  the  carrier  from  a  local 
freight  or  transfer  station.  Where  such  cars  are  loaded  to  a 
prescribed  minimum,  the  practice  of  respondent  has  been  to  make 
no  charge  for  the  service.  In  the  eastern  part  of  the  territory 
involved  the  name  'ferry'  is  given  to  a  car  used  as  above  de- 
scribed, and  in  the  western  part  the  name  'trap'  is  applied.  The 
origin  of  the  names  is  not  clear.  Both  mean  the  same  thing, 
and   for  convenience  the  word  trap  will   be   hereinafter  used." 

In  the  Five  Per  Cent  Case  ^'^  the  Commission  suggested  that 
the  carriers  investigate  special  services  being  rendered  by  them 
with  a  view  to  eliminating  those  that  were  discriminatory  and 
making  proper  charges  for  those  which  were  legal.  In  Con- 
ference Ruling  97,  the  Commission  said :  "The  Commission  con- 
demns as  unlawful  a  practice  under  which  a  carrier  provides  an 
empty  car  at  factory  sidings  in  which  the  shipper  may  load  less- 
than-carload  shipments  which  the  carrier  then  moves  to  its  reg- 
ular freight  station,  where  the  shipments  are  assorted  and  placed 
in  other  cars  to  be  forwarded  to  their  respective  destinations. 
Such  a  practice  is  lawful  only  under  definite  and  clear  tariff 
authority,  nondiscriminatory  in  terms  and  in  its  application." 

Ostensibly  in  compliance  with  the  suggestion  and  the  ruling 
of  the  Commission,  but  with  a  real  desire  that  the  practice  be 
continued,  tarilTs  were  filed  by  the  carriers  in  which  charges 
Avere  proposed  for  the  trap  car  service.  In  the  Trap  Car  Case 
supra,  these  tariffs  were  ordered  canceled.  The  advantages 
from  the  service,  both  to  the  public  and  to  the  carriers,  were 
shown,  and  it  was  held  that  the  service  when  ofifered  without 
undue  preference  or  unjust  discrimination,  was  not  illegal.  It 
is  hardly  open  to  successful  contradiction  that  this  service  les- 
sens the  congestion  which,  without  the  service,  would  result  to 
the  carriers'  terminal  facilities. 

§  142.  Peddler  Cars. — In  some  parts  of  the  United  States 
the  carriers  have  for  many  years  maintained  what  has  come  to  be 
called  a  peddler  car  service.  This  service  has  been  defined  in  32 
I.  C.  C.  429,  note  41,  below  as  follows: 

"Five  Per  Cent  Case,  31  I.  C.  C.   351,   408. 


244  Equality  in  Rates.  [§  143. 

"The  original  arrangement  permitted  the  sale  from  the  cars,  as 
peddlers  from  wagons,  of  fresh  meats  and  packing-house  prod- 
nets,  but  the  growth  of  the  business  and  economy  of  operation 
demanded  that  sales  should  be  made  prior  to  the  shipment  of  the 
car,  and  that  each  package  should  be  consigned  to  a  particular 
consignee.  The  cars  move  from  the  packing  houses,  usually  on 
certain  days  of  each  week,  and  the  loading  depends  on  sales 
made  in  advance,  generally  by  salesmen  of  the  packers  who  can- 
vass the  territory  served  by  the  peddler-car  routes.  When  a 
packer  has  orders  for  a  sufficient  tonnage  he  makes  arrange- 
ments with  the  carrier  for  the  shipment  and  loads  at  his  packing 
plant  a  refrigerator  car  owned  by  him  which  is  usually  equipped 
with  meat  hooks  and  other  necessary  appliances.  Each  car  con- 
tains on  the  average  less  than  100  consignments,  which  are 
loaded  in  station  order.  The  car  is  then  forwarded  by  fast 
freight  to  the  first  destination  to  which  there  is  a  consignment, 
after  which  it  is  handled  as  way  freight  and  the  various  con- 
signments are  unloaded  by  the  carriers  at  the  stations  to  which 
they  are  billed.  *  *  *  j^  appears  that  the  service  rendered 
by  the  respondents  in  connection  with  the  peddler  cars  is  gener- 
ally not  greater,  and  in  some  instances  less,  than  the  service 
which  they  render  in  connection  with  less-than-carload  traffic 
handled  through  their  freight  houses  ;  that  for  the  peddler-car 
service  the  user  pays  the  regular  less-than-carload  rates,  guar- 
antees the  carriers  a  minimum  per-car  earning,  saves  the  carrier 
the  expense  of  refrigeration,  reduces  loss  and  damage  claims, 
and  gives  to  the  carrier  a  volume  of  traffic  which  could  not  be 
satisfactorily  transported  in  its  own  equipment." 

Such  a  service  when  performed  without  discrimination  is  not 
illegal.-' 1 

§  143.  Car  Spotting-. — Similar  in  principle  to  the  trap  car 
service  is  what  has  been  called  car  spotting  which  is  defined:"*^ 
"  'Spotting'  service  is  the  service  beyond  a  reasonably  convenient 
point  of  interchange  between  road  haul  or  connecting  carrier  and 
industrial  plant  tracks,  and  includes:    (a)    One  placement  of  a 

"Investigation   of  Alleged   Un-  House  Products.  36  I.  C.  C.  62. 
reasonable  Rates  on  Meats,  23  I.  "  Car    Spotting    Charges,    3-1    I. 

C.  C.  656;  Rules  Governing  Ship-  C.   C.   609,   614:   Alan  Wood   Iron 

ments     of     Freights     in     Peddler  &   Steel    Co.   v.    P.    R.    Co..   22    1. 

Cars,   32  I.   C.   C.  428;   Rates  and  C.   C.   540. 
Rules      on      Shipments      Packing 


§  144.]  Equality  in  Rates.  245 

loaded  car  which  the  road  haul  or  connecting  carrier  has  trans- 
ported, or  (b)  The  taking  out  of  a  loaded  car  from  a  particular 
location  in  the  plant  for  transportation  by  road  haul  or  connect- 
ing carrier,  (c)  The  handling  of  the  empty  car  in  the  reverse 
direction." 

While  the  shipper  where  shipments  are  delivered  at  his  plant 
or  warehouse  saves  drayage,  the  carrier  who  makes  the  delivery 
is  not  using  its  terminals  and  the  advantage  is  mutual.  It  is 
therefore  a  service  which  is  not  illegal  per  se  and  only  becomes 
illegal  when  granted  to  one  and  refused  to  another  under  cir- 
cumstances which  cause  that  discrimination  prohibited  by  law."** 

§  144.  Undue  Preferences  in  Favor  of  Persons  or  Locali- 
ties.— Section  three  of  the  act  to  regulate  commerce  we  have 
seen  is  substantially  the  same  as  section  two  of  English  Railway 
and  Canal  Traffic  Act  of  1854."*"*  This  section  is  broader  than 
section  two  of  the  English  Act  and  prohibits  undue  or 
unreasonable  preference.  The  words  "undue"  and  "unreason- 
able" in  the  section  show  that  in  the  legislative  mind  there 
could  be  a  preference  that  was  not  unreasonable  and  that  was 
legal.  This  has  been  the  construction  both  of  the  English  and 
the  American  statutes.  The  Supreme  Court  discusses  English 
cases  in  the  Party  Rate  Case,^^  and  also  construes  both  sections 
two  and  three.  The  Supreme  Court  in  the  case  referred  to  re- 
fused to  enforce  an  order  of  the  commission  and  held  that  a 
party  of  ten  or  more  could  be  legally  carried  on  one  ticket  at  a 
less  rate  for  each  individual  than  was  charged  for  one  person.  In 
the  course  of  the  opinion  Mr.  Justice  Brown  said : 

"In  order  to  constitute  an  unjust  discrimination  under  section 
2,  the  carrier  must  charge  or  receive  directly  from  one  person 
a  greater  or  less  compensation  than  from  another,  or  must  ac- 
complish the  same  thing  indirectly  by  means  of  a  special  rate,  re- 
bate, or  other  device ;  but,  in  either  case,  it  must  be  for  a  'like  and 


"General  Elec.  Co.  v.  N.  Y.  C.  Ct.   291;    Iowa    &   S.   W.   Ry.   Co. 

&  H.  R.  Co.,  14  I.  C.  C.  237;  Los  v.   C,   B.    &    Q.    R.   Co.,   32   I.    C. 

Angeles    Case,    18    I.    C.    C.    310;  C.   172. 
Order      sustained      by      Supreme  "  Sec.  135,  infra. 

Court,     Los    Angeles    Switching  ^'  Int.   Com.   Com.  v.   Baltimore 

Case,    234    U.    S.    294,    58    L.    Ed.  &    O.    R.    Co.,    145   U.    S.   263,    36 

1319.    34    Sup.    Ct.    814;    Atchison,  L.   Ed.   699,  705,   12   Sup.    Ct.   844, 

T.    &   S.   F.   Ry.   Co.  V.  U.   S.,   232  4  I.  C.  R.  92. 
U.   S.   199,  58   L.  Ed.   568;  34   Sup. 


246  Equality  in  Rates.  [§  144. 

contemporaneous  service  in  the  transportation  of  a  like  kind  of 
trafitic,  under  substantially  similar  circumstances  and  conditions.' 
To  bring  the  present  case  within  the  words  of  this  section,  we 
must  assume  that  the  transportation  of  ten  persons  on  a  single 
ticket  is  substantially  identical  with  the  transportation  of  one, 
and,  in  view  of  the  universally  accepted  fact  that  a  man  may  buy, 
contract,  or  manufacture  on  a  large  scale  cheaper  proportion- 
ately than  upon  a  small  scale,  this  is  impossible. 

"In  this  connection  we  quote  with  approval  from  the  opinion 
of  Judge  Jackson  in  the  court  below :  'To  come  within  the  in- 
hibition of  said  sections  (2  and  3),  the  differences  must  be 
made  under  like  conditions ;  that  is,  there  must  be  contemporane- 
ous service  in  the  transportation  of  like  kinds  of  traffic  under 
substantially  the  same  circumstances  and  conditions.  In  respect 
to  passenger  traffic,  the  positions  of  the  respective  persons,  or 
classes,  between  whom  differences  in  charges  are  made,  must  be 
compared  wnth  each  other,  and  there  must  be  found  to  exist 
substantial  identity  of  situation  and  of  service,  accompanied  by 
irregularity  and  partiality  resulting  in  luidue  advantage  to  one,  or 
undue  advantage  to  the  other,  in  order  to  constitute  unjust  dis- 
crimination.' 

"The  English  Traffic  Act  of  1854  contains  a  clause  similar  to 
section  3  of  the  Interstate  Commerce  Act,  that  'no  such  com- 
pany shall  make  or  give  any  undue  or  unreasonable  preference 
or  advantage  to  or  in  favor  of  any  particular  person  or  com- 
pany;  or  any  particular  description  of  traffic,  in  any  respect 
whatsoever,  nor  shall  any  such  company  subject  any  particular 
person  or,  company,  or  any  particular  description  of  traffic,  to 
any  undue  or  unreasonable  prejudice,  or  disadvantage  in  any  re- 
spect whatsoever.' 

"In  Hozier  v.  Caledonian  R.  Co.,  17  Sess.  Cas.  303,  1  Xev.  & 
McN.  R.  Cas.  27,  complaint  was  made  by  one  who  had  frequent 
occasion  to  travel,  that  passengers  from  an  intermediate  station 
between  Glasgow  and  Edinburgh  were  charged  much  greater 
rates  to  those  places  than  were  charged  to  other  through  passen- 
gers between  these  termini ;  but  the  Scotch  Court  of  Session 
held  that  the  petitioner  had  not  shown  any  title  or  interest  to 
maintain  the  proceeding;  his  only  complaint  being  that  he  did 
not  choose  that  parties  traveling  from  Edinburgh  to  Glasgow 
should  enjoy  the  benefit  of  a  cheaper  rate  of  travel  than  he  him- 
self could  enjoy.     'It  provides,'  said  the  court,  'for  giving  undue 


§  1-44. J  Equality  in  Rates.  247 

preference  to  parties  pari  passu  in  the  matter,  but  you  must 
bring  them  into  competition  in  order  to  give  them  an  interest  to 
complain.' 

"This  is  in  substance  holding  that  the  allowance  of  a  i  :duced 
through  rate  worked  no  injustice  to  passengers  living  on  the  line 
of  the  road,  who  were  obliged  to  pay  at  a  greater  rate.  So,  in 
Jones  V.  Eastern  Counties  R.  Co.,  3  C.  B.  N.  S.  718,  the  court  re- 
fused an  injunction  to  compel  a  railway  company  to  issue  season 
tickets  between  Colchester  and  London  upon  the  same  terms  as 
they  issued  them  between  Harwich  and  London,  upon  the  mere 
suggestion  that  the  granting  of  the  latter,  the  distance  being  con- 
siderably greater,  at  a  much  lower  rate  than  the  former,  was  an 
undue  and  unreasonable  preference  of  the  inhabitants  of  Har- 
with  over  those  of  Colchester.  Upon  the  other  hand,  in  Ran- 
some  V.  Eastern  Counties  R.  Co.,  1  C.  B.  N.  S.  437,  where  it 
was  manifest  that  a  railway  company  charged  Ipswich  mer- 
chants who  sent  from  thence  coal  which  had  come  thither  by  sea, 
a  higher  rate  for  the  carriage  of  their  coal  than  they  charged  Pe- 
terboro  merchants,  who  had  made  arrangements  with  them  to 
carry  large  quantities  over  their  lines,  and  thus  the  sums  charged 
the  Peterboro  merchants  were  fixed  so  as  to  enable  them  to  com- 
pete with  the  Ipswich  merchant,  the  court  granted  an  injunction 
upon  the  ground  of  an  undue  preference  to  the  Peterboro  mer- 
chants, the  object  of  the  discrimination  being  to  benefit  the  one 
dealer  at  the  expense  of  the  other,  by  depriving  the  latter  of  the 
natural  advantages  of  his  position.  In  Oxlade  v.  Northeastern 
R.  Co.,  1  C.  B.  N.  S.  454,  26  L.  J.  C.  P.  129,  1  N.  &  Mac.  72,  a 
railway  company  was  held  justified  in  carrying  goods  for  one  per- 
son for  a  less  rate  than  that  at  which  they  carried  the  same  de- 
scription of  goods  for  another,  if  there  be  circumstances  which 
render  the  cost  of  carrying  the  goods  for  the  former  less  than 
the  cost  of  carrying  them  for  the  latter,  but  that  a  desire  to  in- 
troduce northern  coke  into  a  certain  district  was  not  a  legitimate 
ground  for  making  special  agreements  with  different  merchants 
for  the  carriage  of  coal  and  coke  at  a  rate  lower  than  the  ordi- 
nary charge,  there  being  nothing  to  show  that  the  pecuniary  in^ 
terests  of  the  company  were  •afifected ;  and  that  this  was  an  un- 
due preference. 

"In  short,  the  substance  of  all  these  decisions  is  that  railway 
companies  are  only  bound  to  give  the  same  terms  to  all  persons 
alike  under  the  same  conditions  and  circumstances,  and  that  any 


248  Equality  in  Rates.  [§  145. 

fact  which  produces  an  inequaUty  of  condition  and  a  change  of 
circumstances  justifies  an  inequahty  of  charge.  These  traffic 
acts  do  not  appear  to  be  as  comprehensive  as  our  own,  and  may 
justify  contracts  which  with  us  would  be  obnoxious  to  the  long 
and  short  haul  clause  of  the  act,  or  would  be  open  to  the  charge 
of  unjust  discrimination.  But  so  far  as  relates  to  the  question 
of  'undue  preference,'  it  must  be  presumed  that  Congress,  in 
adopting  the  language  of  the  English  act,  had  in  mind  the  con- 
struction given  to  these  words  by  the  English  courts,  and  in- 
tended to  incorporate  them  into  the  statute.  McDonald  z^  Har- 
vey, 110  U.  S.  619  (28  L.  Ed.  269,  4  Sup.  Ct.  142)." 

In  the  same  case  Circuit  Judge  Jackson,  afterwards  Mr.  Jus- 
tice Jackson,  said:^*^  "In  passing  upon  the  question  of  undue  or 
unreasonable  preference  or  disadvantage,  it  is  not  only  legiti- 
mate, but  proper,  to  take  into  consideration,  besides  the  mere 
differences  in  charges,  various  elements,  such  as  the  conven- 
ience of  the  public,  the  fair  interest  of  the  carrier,  the  relative 
cjuantities  or  volume  of  the  traffic  involved,  the  relative  cost  of 
the  services  and  profit  to  the  company  and  the  situation  and 
circumstances  of  the  respective  customers  wnth  reference  to  each 
other,  as  competitive  or  otherwise." 

§  145.  Same  Subject— Application  of  Section  Made  by 
the  Commission. — There  have  been  a  great  many  cases  in 
which  the  Interstate  Commerce  Commission  has  applied  section 
3  of  the  Commerce  Act.  A  clear  and  fair  reading  of  the  law,  says 
the  Commission,  "is  one  which  credits  Congress  w^ith  the  in- 
tention of  stopping  all  undue  discrimination  by  interstate  car- 
riers. It  may  be  said  without  exaggeration  that  it  is  the  para- 
mount duty  of  interstate  carriers  under  this  Act  to  avoid  dis- 
crimination."^' 

The  law  is  not  satisfied  because  a  rate  may  not  be  unreasona- 
bly high    for,  as  said  by  the  Commission : 

"A  commuliity  is  entitled  to  something  more  than  a  reasonable 
rate ;  it  is  entitled  to  a  nondiscriminatory  rate.  The  carrier  may 
not  say,  'We  will  give  to  this  community  a  reasonable  rate'  and 
meet  the  full  requirements  of  the  law ;  it  must  view  its  rates  as 

'"Int.   Com.   Com.  v.   Baltimore  C.  31,  41  (Shreveport  Case);  Or- 

&  O.   R.   Co.,  43   Fed.  37,  53,  54,  der    sustained     by    the     Supreme 

3  I.  C.  R.  192.  Court,    Houston    E.    and    W.    v. 

"R.    R.    Com.    of    Louisiana    v.  United   States,   234  U.   S.   342,  58 

St.  Louis  S.  W.  Ry.  Co.,  23  L  C.  L.   Ed.   1341,  34  Sup.   Ct.  833. 


§  145.]  Equality  in  Rates.  249 

a  whole  and  see  to  it  that  they  affect  no  advantage  or  preference 
to  one  community  over  another  which  does  not  arise  necessarily 
out  of  the  transportation  advantages  which  the  one  has  over  the 
other."^^^ 

The  prohibitions  of  the  section  apply  to  all  the  carrier's  duties 
and  obligations,  to  facilities  and  to  through  routes,  for,  as  said 
by  the  Supreme  Court  and  quoted  by  the  Commission,  the  car- 
rier "is  bound  to  deal  fairly  with  the  public,  to  extend  them  rea- 
sonable facilities  for  the  transportation  of  their  persons  and 
property,  and  to  put  all  its  patrons  upon  an  absolute  equality."'*^ 

Nor  does  the  fact,  that  removing  unjust  discrimination  may 
reduce  revenues,  constitute  an  answer  to  the  claim  for  "fair 
play."50 

"Nor  is  it  the  view  of  the  Commission  that  a  carrier  can  not 
be  held  to  discriminate  against  a  community  or  territory  which 
it  does  not  reach  by  its  own  rails.  If  it  participates  in  a  joint 
rate  from  the  territory  aft'ected  and  is  in  such  position  that  it 
may  either  join  in  such  rates  or  decline  to  do  so,  it  is  then  liable 
for  the  discrimination  which  may  result  from  its  action  in  join- 
ing with  the  other  carriers  in  the  discriminatory  rate  or  regula- 
tion."5i 

The  Commission  has  no  power  to  compel  carriers  to  advance 
rates,  so  when  there  is  discrimination  in  rates  between  two  com- 
munities, unless  the  carrier  removes  such  discrimination,  the 
high  rate  must  be  reduced.'^-  Whether  or  not  a  preference  or 
advantage  is  undue  or  unreasonable  within  the  meaning  of  the 


^'R.    R.    Com.     of     Nevada     v.  Co.   v.    Chicago,    R.    I.    &   P.    Ry. 

Southern  Pac.  Co.,  21  I.  C.  C.  329,  Co.,    16    I.    C.    C.    155;    Southern 

366,  quoted  with  approval  in  To-  Furniture  Mnfrs.  Assn.  v.  South- 

peka  Traffic  Assn.  v.  Alabama  &  ern    Ry.    Co.,    25    I.    C.    C.    379; 

V.   Ry.   Co.,  27   I.   C.   C.  428,  436.  Rates  from  the  Walsenberg  Coal 

*"  Union  Pac.  R.  Co.  v.  Good-  Field,  26  I.  C.  C.  85.  See  also 
ridge,  149  U.  S.  680,  37  L.  Ed.  Chamber  of  Commerce  of  Ash- 
896,  13  Sup.  Ct.  970,  quoted  in  burn,  Ga.,  v.  Georgia,  S.  &  F.  R. 
Re  Wichita  Falls  System  Joint  Co.,  23  I.  C.  C.  140.  and  a  sum- 
Coal   Rates,   26   I.   C.   C.   215,   223.  mary   of   Commission   cases   cited 

'"  Cardiff   Coal    Co.   v.    Chicago,  pp.  148,  149,  150. 

M.  &  St.  P.  Ry.  Co.,  13  I.  C.  C.  "Rates   Transportation  of   Fresh 

460,   467.  Meats    &    Packing    House    Prod- 

"  Partridge  &  Sons  v.  Pennsyl-  ucts,   23   I.   C.   C.  652,   655;    Scott 

vania  R.  Co.,  26  I.  C.  C.  484,  486,  Paper  Co.  v.  Pennsylvania  R.  Co., 

487  citing:   Indiana   Steel  &  Wire  26   I.   C.   C.  601,  603. 


250  Equality  ix  Rates.  [§  146. 

section  is  "primarily  for  the  investigation  and  determination  of 
the  Interstate  Commerce  Commission  and  not  for  the  courts. 
The  dominating  purpose  of  the  statute  was  to  secure  conform- 
ity to  the  prescribed  standards  through  the  examination  and  ap- 
preciation of  the  complex  facts  of  transportation  by  the  body 
created  for  that  purpose. "-^^ 

§  146.  Discrimination  against  Traffic. — The  section  pro- 
hibits "any  undue  or  unreasonable  preference  or  advantage  to 
*"    *     *     any  particular  description  of  traffic." 

In  discussing  classification,  section  81  supra,  it  has  been  shown 
that  different  commodities  have  been  classified  or  given  a  spe- 
cial commodity  rating.  The  necessity  and  propriety  of  this  is 
there  shown.  When,  however,  a  particular  "description  of 
traffic"  is  classified,  it  must  be  without  undue  or  unreasonable 
preference. 

In  determining  the  reasonableness  of  rates,  comparisons  may 
be  made  between  commodities  of  like  weight,  bulk,  value,  etc., 
regardless  of  whether  or  not  those  commodities  come  in  compe- 
tition the  one  with  the  other. 

In  determining  whether  or  not  particular  descriptions  of 
traffic  are  so  rated  by  the  carrier  as  to  violate  the  provisions 
quoted  herein,  it  is  material  to  determine  whether  or  not  the 
different  commodities  in  any  way  compete.  This  principle  has 
been  applied  by  the  Commission.  Illustrative  of  the  application 
are: 

Wall  plaster  and  cement  were  sought  to  be  compared,  and  it 
was  said :  "It  is  admitted  that  a  charge  of  undue  discrimination 
may  not  be  predicated  on  the  lower  cement  rates,  because  the 
commodities  are  not  competitive."^"*  In  denying  relief  where 
competition  between  localities  was  alleged,  the  Commission  said: 
"It  does  not  appear  that  there  is  such  a  competitive  relation  be- 
tween Baton  Rouge  and  New  Orleans  in  respect  to  the  com- 

■^  Simpson  v.  Shepard,  230  U.  S.  O.    R.    Co.,   222  U.   S.    506,   56   L. 

352,   57   L.    Ed.    1511,   33    Sup.    Ct.  Ed.   288,   32   Sup.   Ct.   114;   United 

729,  citing  Texas  &  P.  R.  Co.  v.  States   v.    Pac.    &   A.    R.    N.    Co., 

Abilene    Cotton    Oil    Co..    20-t    U.  228    U.    S.   87,    57    L.    Ed.    742,    33 

S.  426,  51  L.   Ed.  553,  27  Sup.   Ct.  Sup.   Ct.  443. 

350,  9  Ann.  Cas.  1075;   Baltimore  "Acme   Cement   Plaster   Co.  v. 

&  O.  R.  Co.  v.  United  States,  215  Lake  Shore  &  M.  S.  Ry.  Co.,   17 

U.   S.  481,   54   L.   Ed.  292,  30  Sup.  I.   C.   C.   30.  36. 
Ct.  164;  Robinson  v.  Baltimore  & 


§  147.]  Equality  in  Rates.  251 

modity  in  question  that  different  rates  to  these  points  are  prima 
facie  unlawful. "^^ 

Between  the  rates  on  wheat  and  coarse  grain,  which  are  "com- 
petitive in  no  practical  sense, "•^•''  and  between  rates  on  poles  and 
lumber,^'''  there  can  be  no  undue  or  illegal  preference  because  of 
lack  of  competition. 

§  147.  Same  Subject — Discrimination  Beyond  the  Con- 
trol of  the  Carrier. — On  this  subject  the  Supreme  Court  has 
said :  ^^ 

"The  prohibition  of  the  3d  section,  when  that  section  is  con- 
sidered in  its  proper  relation,  is  directed  against  unjust  discrim- 
ination or  undue  preference  arising  from  the  voluntary  and 
wrongful  act  of  the  carriers  complained  of  as  having  given  un- 
due preference,  and  does  not  relate  to  acts  the  result  of  condi- 
tions wholly  beyond  the  control  of  such  carriers. "^^ 

What  conditions  come  within  the  description  "beyond  the  con- 
trol" of  the  carriers  will  be  subsequently  discussed.  Suffice  it 
to  say  that  many  past  discriminations  have  been  defended  on  the 
ground  that  the  particular  carrier  complained  against  could  not 
remedy  the  situation ;  the  claim  being  made  that  the  conditions 
had  grown  up  and  existed  without  the  aid  and  contrary  to  the 
wishes  of  the  carrier. 

Length  of  time  that  an  unreasonable  preference  has  existed 
will  not  justify  it.  Judge  Taft,  in  East  Tenn.,  Va.  &  Ga.  Ry. 
Co.  V.  Int.  Com.  Com.,  note  59,  supra,  said : 

"We  are  pressed  with  the  argument  that  to  reduce  the  rates 
to  Chattanooga  will  upset  the  whole  southern  schedule  of  rates, 
and  create  the  greatest  confusion  ;  that  for  a  decade  Chattanooga 
has  been  grouped  with  towns  to  the  south  and  west  of  her, 
shown  in  the  diagram ;  and  that  her  rates  have  been  the  key  to 
the  southern  situation.  The  length  of  time  which  an  abuse  has 
continued  does  not  justify  it.     It  was  because  time  had  not  cor- 

"  Southern   Bitiilithic  Co.  v.  Ill-  Co.  v.   Int.   Com.  Com.,   181   U.   S. 

inois  C.  R.  Co.,  17  I.  C.  C.  300.  1.   18.  45   L.   Ed.  719,  725,  21   Sup. 

'°  Board  of  Trade  of  Chicago  v.  Ct.  SIG. 
Chicago  &  A.  R.  Co.,  27  I.  C.  C.  ''  East    Tenn..    Va.    &    Ga.    Ry. 

530,   535.  Co.    V.    Int.    Com.    Com.,    99    Fed. 

"'California    Pole    &   Piling   Co.  52,   63.  39   C.   C.  A.  413,  425.     See 

V.    Southern    Pac.    Co.,    27    I.    C.  also   Board   of  Trade   of  Chicago 

C.  G70.  r.    Chicago   &  A.   R.   Co.,   4   I.   C. 

""East    Tenn.,    Va.    &    Ga.    Ry.  C.   158,   3   I.   C.  R.  233. 


252  Equality  ix  Rates.  [§  148. 

rected  abuses  of  discrimination  that  the  Interstate  Commerce 
Act  was  passed." 

From  these  authorities  it  is  seen  that  in  determining  whether 
or  not  undue  preference  exists  all  the  surrounding  facts  and  cir- 
cumstances must  be  considered,  including  competition  and  the 
interests  of  the  public  and  the  carriers.  The  commerce  of  this 
vast  country  could  not  be  transacted  unless  carriers  were  al- 
lowed to  meet  market  and  other  competition  by  taking  all  traf- 
fic that  increases  receipts  more  than  expenditures.  Xor  are  ship- 
pers seemingly  discriminated  against  by  this  lower  competitive 
traffic,  really  subjected  to  unjust  and  unreasonable  discrimination 
or  preference.  If  this  cheaper  rate  traffic  pays  any  profit,  it,  to 
that  extent,  increases  the  revenues  of  the  carrier  and  enables  it 
better  to  perform  its  public  duties.  As  said  by  W.  B.  Dabney 
(The  Public  Regulations  of  Railways,  111,  113  )  :  "Discrimination 
which  produces  no  injury  can  not  be  considered  unjust;  if  it 
can  be  shown  that  discrimination  may  in  certain  cases  be  actually 
beneficial  to  the  community  apparently  discriminated  against,  it 
should,  instead  of  being  denounced,  be  encouraged.  It  is  not  the 
commerce  of  one  nation  or  continent  alone,  that  determines  the 
conditions  of  transportation  within  its  limits,  but  that  of  the 
civilized  world."  Carriers,  however,  can  not  use  these  argu- 
ments to  do  more  than  meet  the  situations  presented  by  the  cir- 
cumstances and  conditions,  and  any  discrimination  in  excess  of 
that  required  by  the  dift'erent  conditions  is  unjust  and  unreason- 
able.eo 

§  148.  Facilities  for  Interchange  of  Traffic  and  Rates 
and  Charges  to  Connecting-  Lines  Must  be  Without  Undue 
or  Unreasonable  Preference. — Prior  to  the  statute  a  carrier 
was  not  compelled  to  form  a  business  connection  with  another 
carrier  and  was  not  compelled  to  "altord  all  reasonable,  proper, 
and  equal  facilities  for  the  interchange  of  traffic"  with  connect- 
ing carriers.  In  Atchison,  T.  &  S.  F.  R.  Co.  r.  Denver  &  X.  O. 
R.  Co.,^^  a  bill  was  brought  by  the  Denver  company  to  compel 
the  Atchison  company  to  unite  with  it  in  forming  a  through  line 
of  railroad  transportation  with  all  the  privileges  as  to  exchange 

""As    to    competition    see    post,  "Atchison,  T.  &  S.  F.  Ry.  Co. 

Sec.  201.  Rates  made  by  a  state,  v.  Denver  &  N.  O.  R.  Co.,  110 
Sec.  44  ante.  U.    S.    (567,   28    L.    Ed.    291,    4   Sup. 

Ct.    1S5. 


§  148.]  Equality  in  Rates.  253 

of  business  that  were  customary  with  connecting  carriers  and  that 
were  then  conceded  to  a  competitive  line  of  complainant.  It  ap- 
pears from  the  evidence  that  it  was  the  custom  of  connecting  lines 
to  make  arrangements  with  reference  to  the  interchange  of  busi- 
ness and  the  formation  of  through  lines.  Of  the  facts,  the  court 
said : 

"A  large  amount  of  testimony  is  found  in  the  record,  as  to 
the  custom  of  connecting  roads  in  respect  to  the  interchange  of 
business  and  the  formation  of  through  lines.  From  this  it  ap- 
pears that,  while  through  business  is  very  generally  done  on 
through  lines  formed  by  an  arrangement  between  connecting 
roads,  no  road  can  make  itself  a  part  of  such  a  line,  so  as  to  par- 
ticipate in  its  special  advantages,  without  the  consent  of  the 
others.  Oftentimes  new  roads,  opening  up  new  points,  are  ad- 
mitted at  once  on  notice,  without  a  special  agreement  to  that  ef- 
fect or  in  reference  to  details  ;  still,  if  objection  is  made,  the  new 
road  must  be  content  with  the  right  to  do  business  over  the  line 
in  such  a  way  as  the  law  allows  to  others  that  have  no  special 
contract  interest  in  the  line  itself.  The  manner  in  which  its  busi- 
ness must  be  done  by  the  hue  will  depend  not  alone  on  the  con- 
nection of  its  track  with  that  of  the  line,  but  upon  the  duty  which 
the  line  as  a  carrier  owes  to  it  as  a  customer.  No  usage  has  been 
established  which  requires  one  of  the  component  companies  of  a 
connecting  through  line  to  grant  to  a  competitor  of  any  of  the 
other  companies  the  same  privileges  that  are  accorded  to  its  as- 
sociates, simply  because  the  tracks  of  the  competing  company 
unite  with  its  own  and  admit  of  a  free  and  convenient  inter- 
change of  business.  The  line  is  made  up  by  the  contracting  com- 
panies to  do  business  as  carriers  for  the  public ;  and  companies, 
whose  roads  do  not  form  part  of  the  line,  have  no  other  rights 
in  connection  with  it  than  such  as  belong  to  the  public  at  large, 
unless  special  provision  is  made  therefor  by  the  legislature  or 
the  contracting  companies." 

The  decree  entered  by  the  trial  court  had  fixed  in  detail,  rules 
and  regulations  for  the  working  of  the  Atchison,  Topeka  and 
Santa  Fe  and  Denver  and  New  Orleans  roads,  in  connection  with 
each  other  as  a  connecting  through  line  and,  in  effect,  required 
the  Atchison,  Topeka  and  Santa  Fe  Company  to  pLice  the  Den- 
ver and  New  Orleans  Company  on  an  equal  footing  as  to  the 
interchange  of  business  with  the  most  favored  of  the  competi- 
tors of  that  company,  both  as  to  ])rices  and  facilities,  except  in 


254  Equality  in  Rates.        '  [§148. 

respect  to  the  issue  of  through  bills  of  lading,  through  checks  for 
baggage,  through  tickets  and,  perhaps,  the  compulsory  inter- 
change of  cars. 

The  Supreme  Court  goes  somewhat  at  length  into  the  history 
of  state  legislation  with  reference  to  connections  between  car- 
riers and  holds  that  "such  matters  are  and  always  have  been 
proper  subjects  for  legislative  consideration"  and  that  remedies 
for  failure  to  make  connections  or  to  make  connections  without 
discrimination  "can  only  be  obtained  from  the  legislative  branch 
of  the  government."  The  court  then  discussed  the  "undue  pref- 
erence clause"  of  the  English  Railway  and  Canal  Traffic  Act  of 
1854  and  said : 

"Were  there  such  a  statute  in  Colorado,  this  case  would  come 
before  us  in  a  different  aspect.  As  it  is,  we  know  of  no  powder 
in  the  judiciary  to  do  what  the  Parliament  of  Great  Britain  has 
done  and  what  the  proper  legislative  authority  ought  perhaps 
to  do,  for  the  relief  of  the  parties  to  this  controversy. 

"All  the  American  cases  to  which  our  attention  has  been  called 
by  counsel  relate  either  to  what  amounts  to  undue  discrimination 
between  the  customers  of  a  railroad,  or  to  the  power  of  a  court 
of  chancery  to  interfere,  if  there  be  such  a  discrimination.  None 
of  them  hold  that,  in  the  absence  of  statutory  direction  or  a  spe- 
cific contract,  a  company  having  the  power  to  locate  its  own  stop- 
ping places  can  be  required  by  a  court  of  equity  to  stop  at  an- 
other railroad  junction  and  interchange  business,  or  that  it  must 
under  all  circumstances  give  one  connecting  road  the  same  fa- 
cilities and  the  same  rates  that  it  does  to  another  with  which  it  has 
entered  into  a  special  contract  relations  for  a  continuous  through 
line  and  arrange  facilities  accordingly.  These  cases  are  all  il- 
lustrative in  their  analogies,  but  their  facts  are  dift'erent  from 
those  we  have  nov/  to  consider." 

The  decree  of  the  circuit  court  was  reversed,  with  instructions 
to  dismiss  the  bill  without  prejudice.  This  case  was  decided  in 
1883,  and  clearly  points  out  the  evils  souglit  to  be  remedied  by 
this  section  of  the  act  to  regulate  commerce.  In  Wisconsin,  ^I. 
&  P.  R.  Co.  V.  Jacobson,  '^'-  the  Supreme  Court  had  before  it  a 
case  from  the  Supreme  Court  of  ^linnesota  to  review  the  judg- 
ment of  that  court  affirming  the  judgment  of  the  district  court, 
directing  the  plaintiff'  in  error  and  the  ^^'illmar  &  Sioux  Falls 

"Wisconsin.    M.    &    P.    R.    Co.       Ed.    194.    21    Sup.    Ct.    115. 
V.  Jacobson,   1T9  U.    S.   287,  45   L. 


§  149.]  Equality  in  Rates.  255 

Railway  Company  to  make  track  connections  with  each  other  at 
Hanley  Falls,  in  the  state  of  Minnesota,  where  their  respective 
tracts  intersected. 

The  judgment  of  the  state  court  declared  as  follows: 

"That  it  is  the  duty  of  the  defendants,  the  Wisconsin,  Minne- 
sota &  Pacific  Railroad  Company  and  the  Willmar  &  Souix  Falls 
Raihvay  Company,  and  they  should  be  and  are  -required  to  forth- 
with provide  at  the  place  of  intersection  of  their  said  roads  at 
said  Hanley  Falls,  ample  facilities  by  track  connections  for  trans- 
ferring any  and  all  cars  used  in  the  regular  business  of  their  re- 
spective lines  of  road  from  the  line  of  tracks  of  one  of  said  com- 
panies to  those  of  the  other,  and  to  forthwith  provide,  at  said 
place  of  intersection,  equal  and  reasonable  facilities  for  the  in- 
tercliange  of  cars  and  traffic  between  their  respective  lines,  and 
for  the  receiving,  forwarding,  and  delivering  property  and  cars 
to  and  from  their  respective  lines." 

The  court  discussed  somewhat  at  length  the  legal  principle  that 
railroads  are  public  highways,  upon  which  fact  rests  the  right 
and  duty  of  the  government  to  regulate,  in  a  reasonable  and 
proper  manner,  the  conduct  of  their  business,  and  the  substance 
of  its  opinion  affirming  that  of  the  state  Supreme  court  is  con- 
tained in  two  paragraphs  of  the  opinion,  as  follows : 

"We  think  this  case  is  a  reasonable  exercise  of  the  power  of 
regulation  in  favor  of  the  interests  and  for  the  accommodation 
of  the  public,  and  that  it  does  not,  regard  being  had  to  the  facts, 
unduly,  unfairly,  or  improperly  affect  the  pecuniary  rights  or 
interests  of  the  plaintiff  in  error." 

"In  this  case  the  provision  is  a  manifestly  reasonable  one. 
tending  directly  to  the  accommodation  of  the  public,  and  in  a 
manner  not  substantially  or  unreasonably  detrimental  to  the 
ultimate  interests  of  the  corporation  itself." 

§  149.  Same  Subject — Statute. — The  second  paragraph  of 
section  three  of  the  act  to  regulate  commerce''"  requires  com- 
mon carriers  subject  to  the  act  to  afford  reasonable,  proper  and 
equal  facilities  for  tlie  interchange  of  traffic  and  prohibits  dis- 
crimination in  the  rates  and  charges  of  connecting  lines,  but 
does  not  require  them  to  give  the  use  of  their  tracks  or  terminal 
facilities  to  another  carrier  engaged  in  like  business.  This  pro- 
vision of  the  law  does  not  apply  where  the  circumstances  and 

"Sec.  347,  post. 


256  Equality  in  Rates.  [§  149. 

conditions  are  dissiniilar.'^'^  As  to  its  tracks  and  terminal  facili- 
ties, a  common  carrier  was  under  the  former  law  left  free 
to  allow  their  use  by  one  or  more  connecting  lines  to  the  ex- 
clusion of  others ;  ^^  but  as  will  be  seen  in  a  subsequent  section, 
this  right  of  selection  has  been  limited  by  subsequent  enactments 
and  decisions. 

This  section  did  not  compel  a  carrier  to  establish  through 
routes  and  joint  rates,  and  any  carrier  could  select  from  two 
or  more  connecting  carriers  those  whom  it  would  employ  as  its 
agents  to  send  freight  beyond  its  own  line.'^'^  This  power  to  re- 
quire the  establishment  of  through  routes  and  joint  rates  has 
been  given  to  the  Commission  by  sections  one  and  fifteen  of 
the  Act  as  amended  by  the  Act  of  June  29,  1906.  The  owner  of 
a  private  wharf,  however,  can  not  be  compelled,  except  by  con- 
demnation and  upon  compensation  being  made  for  the  taking 
of  the  property,  to  allow  its  use  by  others. ^^' 

Since  the  Amendment  of  1906  it  has  been  the  duty  of  each 
carrier  subject  to  the  Act  to  Regulate  Commerce  to  "hold  itself 
impartial  as  between  shippers  and  give  to  each  one  equal  ter- 
minal facilities  and  service."  *''^  It  is  not  illegal  for  a  carrier  to 
give  an  exclusive  privilege  to  a  public  auctioneer  to  conduct  auc- 
tions.'''' 

•^Kentucky  &   I.   Bridge   Co.   v.  567.  630;  Prescott  &  A.  C.  R.  Co. 

Louisville   &   X.    R.    Co.,    37    Fed.  v.   Atchison,   T.    &   S.    F.    R.    Co., 

567,   624,   2   L.    R.   A.   289,   2    I.    C.  73    Fed.    438. 

R.  351;  New  York  &  N.  Ry.  Co.  '' Louisville     &    N.     R.    Co.    v. 

V.   New  York    &   N.    E.   Ry.    Co.,  West     Coast    Naval    Stores     Co., 

50    Fed.    867.  19S  U.   S.  483,  49   L.    Ed.   1135,  25 

'''Little  Rock  &  M.  Ry.   Co.  r.  Sup.    Ct.   745;  Weems   Steamboat 

St.  Louis,  I.  M.  &  S.  Ry.  Co.,  59  Co.    v.    People's    Co.,    214    U.    S. 

Fed.  400.     Affirmed.     63  Fed.  775,  345,    53    L.    Ed.    1024,    29    Sup.    Ct. 

11     C.     C.    A.    417.     26     L.     R.     A.  661. 

192.     Oregon   S.   L.   &  V .   N.   Co.  ''  Enterprise   Fuel   Co.  v.   Penn- 

V.  Northern  Pac.  R.  Co.,  51  Fed.  sylvania   R.   Co..   16   L   C.   C.  219, 

465.      Affirmed.      61    Fed.    158.    9  224;     Baltimore     Butchers     Abat- 

C.   C.  A.  409;  Atchison,  T.    &  S.  toir   &   Live   Stock    Co.  v.   Phila- 

F.    Ry.    Co.   V.    Denver    &    N.    O.  delphia,    B.    &   W.    R.    Co.,    20    L 

R.   Co.,   110  U.   S.   667,  28   L.   Ed.  C.     C.    124,    128;    Buffalo     Union 

291,   4   Sup.    Ct.    185:    Gulf,    C.    &  Furnace  Co.  v.  Lake  Shore  &  M. 

S.    F.    Ry.    Co.    v.    Miami    S.    S.  S.   Ry.   Co..  21   L  C.   C.  620. 
Co.,  86  Fed.  407.  30  C.  C.  A.  142.  "'  Southwestern     Produce      Dis- 

"*  Kentucky  &  L  Bridge  Co.  v.  tributers  v.  Wabash  R.  Co..  20  L 

Louisville    &   N.    R.    Co.,   37    Fed.  C.    C.    458. 


§  150.]  Equality  in  Rates.  257 

§  150.  Same  Subject — Statute  and  Proviso. — Section  three 
of  the  Act  to  Regulate  Commerce,  discussed  in  the  next  preceding 
section  thereof,  has  a  proviso  as  follows : 

"But  this  shall  not  be  construed  as  requiring  any  such  com- 
mon carrier  to  give  the  use  of  its  tracks  or  terminal  facilities  to 
another  carrier  engaged  in  like  business." 

In  discussing  this  proviso,  the  Commission  held,  that  where 
carriers  allowed  th?  "use  of  their  tracks,  or  terminal  facilities, 
the  proviso  of  section  3  can  have  no  application;"  and  in  the 
further  course  of  the  opinion  in  the  same  case  it  was  said : 

"Terminals  are  either  open  or  they  are  not ;  and  if  a  carrier 
holds  itself  out  as  ready  to  permit  the  use  of  its  tracks  at  a  cer- 
tain charge,  the  fact  that  such  charge  may  be  prohibitive  does 
not  mean  that  the  terminals  are  not  open.  On  the  contrary,  it 
would  seem  to  be  a  potent  argument  for  the  reduction  of  charges 
for  the  use  of  tracks  or  terminal  facilities  already  extended." 

And,  said  the  Commission,  concluding  the  argument : 

"It  follows,  that  having  elected  to  perform  this  service,  the 
charge  therefor  must  be  reasonable."  "" 

In  another  case,  the  Commission  said : 

"It  is  not  our  view  that  the  inhibition  in  section  3  was  intended 
to  give,  or  that  it  does  give,  defendant  the  privilege  to  accord 
one  carrier  an  interchange  of  traffic  and  to  deny  such  interchange 
to  a  competitor  of  such  carrier,  or  to  accord  one  carrier  the  use 
of  its  terminal  facilities  and  deny  such  use  to  another." 

And,  in  the  further  course  of  the  opinion  it  was  said: 

"The  terminal  properties  of  carriers,  like  all  other  parts  of 
their  property,  are  devoted  to  the  public  use  and  must  be  treated 
exactly  as  all  other  parts  of  the  property  of  common  carriers  are 
treated  in  carrying  out  the  spirit  and  letter  of  regulatory  stat- 
utes. Respondent  is  not  asked  to  'give'  the  use  of  its  terminal 
properties,  nor  any  part  of  them,  to  any  other  carrier.  It  is  asked 
to  perform  a  service  upon  reasonable  and  just  terms.  The  per- 
formance of  such  a  service  is  the  very  reason  of  its  existence. 
If  the  contention  of  respondent  to  the  effect  that  its  terminal 
properties  are  absolutely  subject  to  its  determining  will  were  to 
be  upheld,  every  community  in  this  country  would  to  that  ex- 
tent be  absolutely  at  the  mercy  of  those  who  control  the  exist- 

"  Merchants     &    Mnfrs.     Assn.       C.   474,   47G.      See   note   72   below. 
V.   Pennsylvania   R.    Co.,   23    I.   C. 
—9 


258  Equality  in  Rates.  [§  151. 

ing  terminals.  Terminal  properties  are  devoted  to  the  public 
use  of  the  whole  of  the  communities  in  which  they  have  been 
created.  They  are  not  a  preempted  domain,  against  which  the 
public  can  assert  no  rights  and  upon  which  it  may  impose  no  du- 
ties. If  such  a  doctrine  were  to  be  accepted  every  growing  com- 
munity would  find  it  impossible  to  accept  and  encourage  the 
service  of  carriers  still  to  be  created  at  reasonably  convenient 
points  within  their  respective  boundaries,  and  thus  many  of  the 
larger  purposes  of  the  act  would  be  defeated."  '''^ 

In  the  Pennsylvania  Switching  case'^^  the  Commission  to  re- 
move an  unjust  discrimination  directed  the  Pennsylvania  Com- 
pany to  switch  the  cars  of  all  connecting  lines.  The  road  re- 
lied on  the  proviso  of  section  3  quoted  above,  but  the  court  held 
that  the  Pennsylvania  Company  was  required  so  to  use  its  own 
terminals  as  not  to  efTect  an  unjust  discrimination. 

§  151.  Through  Routes  and  Joint  Rates. — The  statutory 
duty  of  the  carriers  to  establish  and  maintain  through  routes  and 
joint  rates,  together  with  the  statutory  power  of  the  Commission 
in  respect  thereto,  will  be  discussed  in  another  connection.'^^ 
The  question  of  discrimination  is  the  subject  of  this  section. 

Mr.  Commissioner  Lane,  in  an  opinion  of  the  Commission 
dealing  with  the  question,  asked :  "What  is  the  duty  of  the  car- 
riers with  respect  to  the  operation  of  through  routes?"  And  he 
also  asks :  "What  power  has  been  vested  in  the  Commission  to 
enforce  the  requirements  of  the  law?"  Answering  the  first 
question  he  said : 

"There  can  be  little  doubt  as  to  the  duty  of  the  carriers  under 
the  present  act.  The  commerce  of  the  country  is  regarded  as  na- 
tional, not  local,  and  the  railroads  are  required  to  serve  the 
routes  which  they  have  established,  or  which  they  have  been  re- 
quired to  establish."  The  statute  is  then  quoted,  and  analyzed 
and  in  further  answer  to  the  first  question,  the  opinion  proceeds : 
"Reading  these  provisions  together,  there  can  be  no  doubt  as  to 
the  intent  of  Congress.  Our  railroads  are  called  upon  to  unite 
themselves  that  they  will  constitute  one  national  system ;  they 
must  establish  through  routes,  keep  these  routes  open  and  in  op- 
eration, furnish  the  necessary  facilities  for  transportation,  make 

''St.    Louis,    S.    &    P.    R.    Co.   V.  236   U.    S.,    351.    59    L.    Ed.   —    35 

Peoria   &  P.  U.   R.    Co.,   26   I.   C.  Sup.      Ct.      Rep.     370;     affirming 

C.    226,    236,    237.  Same   Styled   Case,   214   Fed.   445. 

"Penn.    Co.    v.    United    States,  '^  Post.   Sec.    195. 


§  152.]  Equality  in  Rates.  259 

reasonable  and  proper  rules  of  practice  as  between  themselves 
and  the  shippers,  and  as  between  each  other.  The  full  burden 
of  this  great  obligation  is  in  the  first  instance  cast  upon  the  car- 
riers themselves." 

As  to  the  second  question,  it  was  there  said : 

"The  law's  requirements  as  to  the  duty  of  the  carrier  to  the 
shipper  to  furnish  equipment  and  maintain  its  through  routes 
carries  with  it  necessarily  the  power  on  the  part  of  the  Commis- 
sion to  enforce  rules  which  will  permit  the  free  interchange  of 
traffic  as  between  carriers.  The  carriers  must  keep  their 
through  routes  open,  and  if  they  fail  to  do  this  because  of  the 
diversion  or  appropriation  of  cars  this  Commission  has  it  within 
its  power  to  prescribe  the  conditions  upon  which  such  through 
routes  shall  be  operated."  ''^ 

The  duty  exists  to  maintain  through  routes  without  undue  dis- 
crimination and,  should  the  carriers  fail  in  the  performance  of 
that  duty,  the  Commission  has  power  to  enforce  it.  "^ 

In  pursuance  of  this  power,  aided  by  the  additional  power 
granted  in  the  Panama  Canal  Act,"*'  the  Commission  has  held 
that  it  could  enforce    through    routes  with  a    water  carrier."" 

§  152  Discrimination  by  Charging  More  for  a  Shorter 
Than  a  Longer  Haul — Old  Law. — Section  four  of  the  Act  to 
Regulate  Commerce  as  originally  enacted,  known  as  the  long 
and  short  haul  clause,  prohibited  carriers  from  charging  or  re- 
ceiving a  greater  compensation  from  transportation  of  pas- 
sengers or  "likekind  of  property  under  substantially  similar  cir- 
cumstances and  conditions"  for  a  shorter  than  for  a  longer  dis- 
tance over  the  same  line,  in  the  same  direction,  the  shorter  being 
included  in  the  longer.  The  proviso  of  the  section  authorizes 
the  Commission,  in  special  cases,  after  investigation,  to  per- 
mit a  less  charge  for  a  longer  than  a  shorter  haul.  The  meaning 
of  this  proviso  was  first  discussed  by  Judge  Cooley,  then  chair- 
man of  the  Commission,  In  re  Petition  of  Louisville  and  Nash- 

"  Missouri    &    Illinois    Coal    Co.  "Augusta    &   Savannah    Steam- 

V.   Illinois   C.   R.   Co.,  22   I.   C.   C.  boat  Co.  v.  Ocean  Steamship  Co., 

39,    44,    45,    46,    49.  26  I.  C.  C.  380;  Decatur  Nav.  Co. 

"Re     Coal     Rates     on     Stony  v.    L.    &   N.    R.    Co.,   31    I.    C.    C. 

Fork  Branch,  26  I.  C.  C.  168;  St.  281  and  cases  cited;  Port  Huron 

Louis,   S.   &  P.   R.   Co.  V.   Peoria  &   D.   S.    S.   Co.  v.   P.    R.   Co.,  35 

&  P.  U.  Ry.  Co.,  26  I.   C.   C.  226.  I.    C.    C.    475. 

''Post,    Sec.   377. 


260  Equality  ix  Rates.  [§  152. 

ville  Railroad  Co.  and  Southern  Ry.  &  S.  S.  Co.,  1  I.  C.  C. 
31,  57,  1  I.  C.  R.  278.  The  carriers,  not  knowing  just  what 
would  be  the  construction  of  the  section,  thought  it  wise  to  ap-^ 
peal  to  the  discretion  granted  by  the  Commission  in  the  proviso. 
The  proceedings  before  the  Commission  in  the  case  cited,  supra 
are  given  at  length  in  the  Interstate  Commerce  Reports,  vol.  I. 
beginning  at  page  76. 

The  first  case  under  this  section  to  reach  the  Supreme  Court 
is  what  is  known  as  the  Social  Circle  case.'^  In  that  case  the 
first  contention  was  that  as  the  charge  to  Social  Circle  was  made 
up,  of  the  joint  rate  to  Atlanta,  the  long  haul,  .plus  the  local  rate 
over  an  intrastate  road  from  Atlanta  to  Social  Circle,  the  whole 
of  the  local  rate  going  to  the  state  road,  the  shipment  was  not 
within  the  provisions  of  the  act  to  regulate  commerce.  This 
contention  was  held  unsound,  the  court  saying:  "that  when 
goods  are  shipped  under  a  through  bill  of  lading,  from  a  point 
in  one  state  to  a  point  in  another,  and  when  such  goods  are  re- 
ceived in  transit  by  a  state  common  carrier,  under  a  conventional 
division  of  the  charges,  such  carrier  must  be  deemed  to  have 
subjected  its  road  to  an  arrangement  for  a  continuous  carriage 
or  shipment  within  the  meaning  of  the  act  to  regulate  commerce." 
Having  held  that  the  Georgia  Road  was  subject  to  the  provision 
of  the  section,  the  court  proceeded  to  define  the  power  of  the 
Commission,  and  to  state  the  effect  of  its  decision  that  the  sec- 
tion had  been  violated.     The  court  said : 

"Subject,  then,  as  we  hold  the  Georgia  Railroad  Company  is, 
under  the  facts  found,  to  the  provisions  of  the  act  to  regulate 
commerce,  in  respect  to  its  interstate  freight,  it  follows,  as  we 
think,  that  it  was  within  the  jurisdiction  of  the  Commission  to 
consider  whether  the  said  company,  in  charging  a  higher  rate 
for  a  shorter  than  a  longer  distance  over  the  same  line,  in  the 
same  direction,  the  shorter  being  included  within  the  longer  dis- 
tance, was  or  was  not  transporting  property  in  transit  between 
states,  under  'substantially  similar  circumstances  and  conditions.' 

"We  do  not  say  that,  under  no  circumstances  and  conditions, 
would  it  be  lawful,  when  engaged  in  the  transportation  of  for- 
eign freight,  for  a  carrier  to  charge  more  for  a  shorter  than  a 
longer  distance  on  its  own  line ;  but  it  is   for  the  tribunal  ap- 

"  Int.  Com.  Com.  z\  Cincinnati,  S.  184.  40  L.  Ed.  935.  16  Sup. 
N.    O.    &  T.   P.    Ry.    Co.,    162   U.       Ct.  700. 


§  153.]  Equality  in  Rates.  261 

pointed  to  enforce  the  provisions  of  the  statute,  whether  the 
Commission  or  the  court,  to  consider  whether  the  existing  cir- 
cumstances and  conditions  were  or  were  not  substantially  sim- 
ilar." 

§  133.  Long  and  Short  Haul — Old  Law  Continued — Defi- 
nite Construction. — In  the  Troy  Alabama  case,"''  the  Supreme 
Court  held  that  competition  between  rival  routes  which  affects 
rates  must  be  considered  in  determining  whether  or  not  the  cir- 
cumstances and  conditions  were  substantially  similar  under  sec- 
tion four  of  the  act,  although  such  competition  was  not  a  perti- 
nent fact  in  considering  discrimination  under  section  two.  It 
was  there  said  by  Mr.  Justice  Shiras : 

"We  are  unable  to  suppose  that  Congress  intended,  by  the  4th 
section  and  the  proviso  thereto,  to  forbid  the  common  carriers, 
in  cases  where  circumstances  and  conditions  are  substantially 
dissimilar,  from  making  different  rates  until  and  unless  the  Com- 
mission shall  authorize  them  so  to  do,  much  less  do  we  think  that 
it  was  the  intention  of  Congress  that  the  decision  of  the  Com- 
mission, if  applied  to,  could  not  be  reviewed  by  the  courts.  The 
provisions  of  section  16  of  the  act,  which  authorizes  the  court  to 
'proceed  to  hear  and  determine  the  matter  speedily  as  a  court  of 
equity,  and  without  the  formal  pleadings  and  proceedings  appli- 
cable to  ordinary  suits  in  equity  but  in  such  manner  as  to  do 
lustice  in  the  premises,  and  to  ih:,~  end,  such  court  shall  have 
power,  if  it  think  fit,  to  direct  and  prosecute  in  such  mode  and 
by  such  persons  as  it  may  appoint,  all  such  inquiries  as  the  court 
may  think  needful  to  enable  it  to  form  a  just  judginent  in  the 
matter  of  such  petition,'  extend  as  well  to  an  inquiry  or  pro- 
ceeding under  the  4th  section  as  to  those  arising  under  the  other 
sections  of  the  act." 

After  reviewing  the  evidence,  the  order  of  the  commission 
was  set  aside.  This  decision  put  it  in  the  power  of  rail  carriers 
practically  to  destroy  the  force  of  section  four.  If  competition 
of  rival  lines  will  relieve  from  the  section,  it  is  always  possible 
for  the  line  that  reaches  the  longer  distance  point,  and  not  the 
shorter,  to  make  such  competition  as  will  release  from  the  obli- 
gation of  the  statute  the  carrier  that  serves  both  points.  This 
result  was  clearly  pointed  out  by  Mr.  Justice  Harlan  in  his  dis- 
senting opinion,  in  language  as  follows : 

'"  Int.    Com.    Com.    v.    Alabama       Ed.   414,   18   Sup.   Ct.  45. 
M.    R.    Co.,    168    U.    S.    144,    42    L. 


262  Equality  in  Rates.  [§  153. 

"I  dissent  from  the  opinion  and  judgment  in  this  case.  Taken 
in  connection  with  other  decisions  defining  the  powers  of  the  In- 
terstate Commerce  Commission,  the  present  decision,  it  seems  to 
me,  goes  far  to  make  that  Commission  a  useless  body  for  all 
practical  purposes,  and  to  defeat  many  of  the  important  objects 
designed  to  be  accomplished  by  the  various  enactments  of  Con- 
gress relating  to  interstate  commerce.  The  Commission  was  es- 
tablished to  protect  the  public  against  the  improper  practices  of 
transportation. companies  engaged  in  commerce  among  the  sev- 
eral states.  It  has  been  left,  it  is  true,  with  power  to  make  re- 
ports, and  to  issue  protests.  But  it  has  been  shorn,  by  judicial 
interpretation,  of  authority  to  do  anything  of  an  effective  charac- 
ter. It  is  denied  many  of  the  powers  which,  in  my  judgment, 
were  intended  to  be  conferred  upon  it.  Besides,  the  acts  of  Con- 
gress are  now  so  construed  as  to  place  communities  on  the  lines 
of  interstate  commerce  at  the  mercy  of  competing  railroad  com- 
panies engaged  in  such  commerce.  The  judgment  in  this  case,  if 
I  do  not  misapprehend  its  scope  and  effect,  proceeds  upon  the 
ground  that  railroad  companies,  when  competitors  for  interstate 
business  at  certain  points,  may,  in  order  to  secure  traffic  for  and 
at  those  points,  establish  rates  that  will  enable  them  to  accom- 
plish that  result,  although  such  rates  may  discriminate  against  in- 
termediate points.  Under  such  an  interpretation  of  the  statutes 
in  question,  they  may  well  be  regarded  as  recognizing  the  author- 
ity of  competing  railroad  companies  engaged  in  interstate  com- 
merce— when  their  interests  will  be  subserved  thereby — to  build 
up  favored  centers  of  population  at  the  expense  of  the  business 
of  the  country  at  large.  I  can  not  believe  that  Congress  intended 
any  such  result,  nor  do  I  think  that  its  enactments,  properly  in- 
terpreted, would  lead  to  such  a  result." 

It  would  seem  that  the  dissenting  opinion  of  ]\Ir.  Justice  Har- 
lan, supra,  more  nearly  applied  the  legislative  intent  than  that  ar- 
rived at  by  the  majority  of  the  court.  But  it  should  be  remem- 
bered that,  as  has  been  said  by  the  Supreme  Court,  the  act  to 
regulate  commerce  was  experimental,  and  its  purpose  was  not 
to  prevent,  but  promote,  competition.  Competition  of  markets 
is  a  force  that  carriers  can  not  disregard,  it  affects  all  transporta- 
tion to  a  greater  or  less  extent.  As  said  by  Arthur  T.  Hadley, 
Railroad  Transportation,  p.  65 :  "The  wheat  of  Dakota,  the 
wheat  of  Russia,  and  the  wheat  of  India  come  into  direct  com- 
petition.   The  supply  at  Odessa  is  an  element  in  determining  the 


§  153.]  Equality  in  Rates.  263 

price  at  Chicago.  *  *  *  Cabbages  from  Germany  contend  with 
cabbages  from  Missouri  in  the  markets  of  New  York."  Nor 
does  this  lower  rate  to  the  competitive  point  injure  the  non-com- 
petitive point,  so  long  as  there  is  any  profit  in  the  competitive 
rate.  This  point  is  clearly  pointed  out  in  the  LaGrange  case.^" 
The  higher  rate  for  the  local  haul  is  sometimes  necessary  in  or- 
der that  a  community  may  have  railroad  transportation.  To 
quote  again  from  Hadley's  Railroad  Transportation,  at  p.  115: 

"Suppose  it  is  a  question  whether  a  road  can  be  built  through 
a  country  district,  lying  between  two  large  cities,  which  have  the 
benefit  of  water  communication,  while  the  intervening  district 
has  not.  The  rate  between  these  points  must  be  made  low  to 
meet  water  competition  ;  so  low  that  if  it  were  applied  to  the  whole 
business  of  the  road  it  would  make  it  quite  unprofitable.  On  the 
other  hand,  the  local  business  at  intermediate  points  is  so  small 
that  this  alone  can  not  support  the  road,  no  matter  how  low  or 
how  high  the  rates  are  made.  So  that,  in  order  to  live  at  all,  the 
road  must  secure  two  different  things — the  high  rates  for  its  lo- 
cal traffic,  and  the  large  traffic  of  the  through  points  which  can 
only  be  attracted  by  low  rates.  If  the  community  is  to  have  the 
road,  it  must  permit  the  discrimination." 

The  burden  of  proof  to  show  dissimilarity  in  circumstances 
is  on  the  carrier. --^  "Line"  used  in  the  statute  means  a  physical 
line,  not  a  mere  business  arrangement. ■^- 


""Int.   Com.   Com.  v.   Louisville  cago    &    N.   W.    Ry.    Co.,    167    U. 

&  N.  R.  Co.,  190  U.  S.  273,  47  L-  S.    447,    42    L.    Ed.    231,    17    Sup. 

Ed.   1047,  23   Sup.   Ct.   687.  Ct.    887;    Int.    Com.    Com.   v.    De- 

"' Spartanburg   Board   of  Trade  troit,    G.    H.    &   M.    Ry.    Co.,    167 

V.   Richmond    &   D.    R.    Co.,    2    I.  U.  S.  633,  42  L.  Ed.  306,   17   Sup. 

C.   C.  304,  2  I.   C.   R.   193.  Ct.   986;    Louisville   &   N.   R.    Co. 

''Boston   &  A.   R.    Co.  v.   Bos-  v.   Behlmer,  175  U.  S.  648,  44  L. 

ton  &  L.  R.   Co.,  1   L   C.   C.   158,  Ed.    309,    20    Sup.    Ct.    209;    East 

1    T.    C.    R.    500,    571;    Daniels    v.  Tenn.,  Va.  &  Ga.  Ry.  Co.  v.  Int. 

Chicago,   R.   I.   &  P.  R.   Co.,  6  I.  Com.    Com.,    181    U.    S.    1,    45    L. 

C.    C.   458,   476.      For   other   cases  Ed.    719,    21    Sup.    Ct.    516.      See 

discussing  the  subject  see:     Rail-  also    Int.     Com.     Com.    z'.    Clyde 

road  Com.  of  Georgia,  Trammel!  S.  S.  Co.,  181  U.  S.  29,  45  L.  Ed. 

et  al.  V.  Clyde  S.  S.  Co.,  5   I.    C.  729,   21    Sup.    Ct.    512;    Brewer   v. 

C.  324,  4  I.   C.   R.   120,   150;  Tex.  Central    of    Ga.    R.    Co.,    84    Fed. 

&  P.  Ry.  Co.  V.  Int.  Com.  Com.,  258;   Int.   Com.   Com.  v.  Western 

163  U.   S.    197,   40   L.    Ed.   940,   16  &  A.  R.   Co.,  88   Fed.   186. 
Sup.     Ct.    666;     Parsons    v.    Chi- 


264  Equality  in  Rates.  [§  154. 

§  154.  Long  and  Short  Haul  Clause  under  Act  1910. — 
Congress  in  1910  for  the  first  time  since  the  passage  of  the  Act 
to  Regulate  Commerce,  amended  the  so-called  Long  and  Short 
Haul  Clause  of  the  Act  (Sec.  4).  The  Amendment  struck  out 
the  words  of  the  former  law  "under  substantially  similar  cir- 
cumstances and  conditions,"  but  gave  the  Commission  power, 
upon  application  and  after  investigation,  to  grant  relief  from  the 
operation  of  the  section  as  amended. ^^ 

Construing  the  Amended  Act  the  Commission  held  it  consti- 
tutional ;  held  that  its  provisions  granted  the  Commission  power 
to  determine  how  far  relief  should  be  extended,  power  to  deter- 
mine whether  or  not  a  wrong  resulted  from  a  particular  applica- 
tion of  rates  and  power  to  correct  that  wrong  if  found  to  exist. 
The  history  of  the  old  and  the  new  law  was  given  and  the  con- 
clusion reached  that,  while  in  determining  what  relief  should  be 
granted  under  the  power  conferred  by  the  proviso,  the  Commis- 
sion could  not  act  arbitrarily,  but  must  apply  the  principles  con- 
trolling in  administering  other  portions  of  the  Act.  Applying 
this  conclusion  to  transcontinental  transportation,  the  Commis- 
sion divided  the  United  States  into  zones  and  fixed  a  rate  per- 
centage between  the  different  zones. ^■^  Suit  being  filed  in  the 
Commerce  Court,  that  court  enjoined  the  order  of  the  Com- 
missions.*^ An  appeal  being  taken  to  the  Supreme  Court,  that 
court  reversed  the  Commerce  Court  and  sustained  the  validity 
of  the  statute,  thus  leaving  in  force  the  orders  of  the  commis- 


sion 


86 


The  right  primarily  to  determine  for  themselves  the  exist- 
ence of  circumstances  as  a  basis  of  charging  higher  rates  for 
shorter  than  for  longer  distances,  was  taken  from  the  carriers 
and  vested  in  the  Commission  by  the  amendment  of  1910.     This 

*^Sec.   348,  post.     Also   old   and  "United  States  v.  Atchison,  T. 

new  law  contrasted,  Atchison,  T.  &   S.   F.   Ry.    Co.,  234  U.   S.   476, 

&  S.  F.  Ry.  Co.  V.  United  States,  58   L.    Ed.    1408,   34   Sup.   Ct.   986, 

191    Fed.    856,    857,    and    Railroad  reversing    Atchison,    T.    &    S.    F. 

Com.  of  Nev.  v.  So.  Pac.  Co.,  21  Ry.    Co.    v.    United    States,    191 

I.   C.   C.   329,   332,  333.  Fed.  856   supra  and  sustaining  or- 

"  Railroad    Com.    of   Nevada    v.  der   of   the    Commission    in   21    I. 

Southern    Pac.    Co.,    21    I.    C.    C.  C.   C.   329   and  400  supra.  Opinion 

329;  City  of  Spokane  v.  Xoithern  Commerce   Court   Nos.   50,   51,   p. 

Pac.   Ry.   Co.,   21   I.   C.   C.  400.  229 — ("Intermountain     Case")- 

**  Atchison.  T.  &  S.  F.  Ry.  Co. 
V.  United  States,   191  Fed.  856. 


§  155.]  Equality  in  Rates.  265 

fact  was  stated  by  the  Supreme  Court,  following  which  state- 
ment it  was  said :  ^''  "This  results  from  the  fact  that  by  the 
ai:nendment  in  question  the  original  power  to  determine  the  ex- 
istence of  the  conditions  justifying  the  greater  charge  for  a  shorter 
than  was  expected  for  a  longer  distance,  was  taken  from  the  car- 
riers and  primarily  vested  in  the  Interstate  Commerce  Commis- 
sion, and  for  the  purpose  of  making  the  prohibition  efficacious  it 
was  enacted  that  after  a  time  fixed  no  existing  rate  of  the  char- 
acter provided  for  should  continue  in  force  unless  the  applica- 
tion to  sanction  it  had  been  made  and  granted." 

§  155.  Fourth  Section — Relation  between  Through 
Rates  and  Intermediate  Rates. — That  through  rates  should 
not  exceed  the  sum  of  the  local  rates  and  that  prima  facie  the 
through  rates  should  be  less  than  the  aggregate  of  the  locals, 
were  general  principles  announced  and  applied  by  the  Commis- 
sion prior  to  the  Act  of  1910.  The  amendment  contained  in  that 
Act  made  it  illegal  for  a  carrier  "to  charge  any  greater  compen- 
sation as  a  through  route  than  the  aggregate  of  the  intermediate 
rates  subject  to  the  provisions  of"  the  Act.^^ 

The  Commission  has  assumed  to  grant  relief  from  this  clause 
of  the  Fourth  section  as  it  has  and  was  certainly  authorized  to 
do  as  to  the  provision  relating  to  long  and  short  hauls.  The  pur- 
pose of  the  Amendment  was  to  fix  one  method  of  measuring 
rates  and  to  prevent  unjust  discrimination.  Obviously  two  or 
more  hauls  over  intermediate  lines  should  cost  more  than  one 
haul  over  the  same  lines ;  therefore,  to  charge  more  for  what 
costs  less  is  unjust  discrimination.  The  subject  has  been  dis- 
cussed supra,  sections  119,  120  and  121. 

§  156.  Discrimination  between  Car  Loads  and  Less 
than  Car  Loads. — A  differential  between  car  load  and  less  than 
car  load  shipments  is  not  prohibited  by  the  act  to  regulate  com- 
merce, and  the  Commission  has  said :  ^^  "It  is  a  sound  rule  for 
carriers  to  adapt  their  classifications  to  the  laws  of  trade.  If  an 
article  moves  in  sufficient  volume,  and  the  demands  of  com- 
merce will  be  better  served,  it  is  reasonable  to  give  it  a  car  load 
classification  and  rate.     The  car  load  is  probably  the  only  prac- 


"  United  States  v.  L.   &  N.   R.  **  Sec.   200,  post. 

Co.,  235  U.  S.  314,  59  L.   Ed.  — ,  *"  Thurber   v.    New   York    C.    & 

35     Sup.     Ct.     113,     citing     Inter-  H.   R.   R.   Co.,   3   I.   C.    C.   R.   473, 

mountain    Case,    note   supra.  2   I.   C.   R.   742. 


266  Equality  in  Rates.  [§  157. 

ticable  unit  of  quantity."  Whether  or  not  there  should  be  a  dif- 
ferential and,  if  any,  what,  between  car  loads  and  less  than  car 
loads  depends  upon  the  facts  and  circumstances  of  each  partic- 
ular case.  One  of  the  most  important  facts  to  be  considered  is 
the  difiference,  if  any,  in  the  cost  of  service. 

Noyes,  in  his  excellent  work  on  American  Railroad  Rates  ^"^ 
says :  "Shipments  in  car  load  lots  furnish  a  large  paying  freight 
relative  to  dead  weight,  and  smaller  proportionate  expense  for 
loading  and  unloading,  billing  and  collecting,  than  small  ship- 
ments." The  diiTerential,  like  a  rate,  should  be  reasonable  and 
should  be. fixed  with  a  view  to  the  just  interests  of  all  concerned 
and  the  adjustment  of  this  difference  rests  primarily  with  the 
carriers. ^^  This  principle  has  been  very  generally  recognized 
by  carriers. 

The  numljer  of  commodities  taking  car  load  classifications 
has  materially  increased. 

This  progressive  recognition  of  the  law  that  it  is  discrimina- 
tion to  charge  for  a  less  expensive  movement  the  same  as  for  a 
more  expensive  one,  would  seem  to  justify  the  hope  that  this 
form  of  discrimination  may  eventually  be  abolished.  There  is 
no  equitable  reason  for  a  dift'erent  rate  per  car  on  car  loads 
and  trainloads.'*-  While  the  Commission  has  always  shown  re- 
luctance to  require  the  establishment  of  car  load  ratings,  it  has 
to  prevent  discrimination  ordered  carriers  to  make  such  a  rat- 
ing.^2  The  question  is  discussed  in  sections  112,  113,  and  116 
supra,  and  there  is  a  full  review  of  the  authorities  in  the  Taylor 
Dry  Goods  Case.^'* 

§  157.  Bulked  Shipments. — It  has  been  held  ^^  in  England 
that  a  railway  company  can  not  legally  charge  a  greater  sum 
for  the  carriage  of  a  package  containing  several  parcels  belong- 

"^  Noyes,      American      Railroad  Fed.     652;     Paine     Bros.    v.    Le- 

Rates,   73.  high  V.  R.  Co.,  7  I.  C.  C.  218. 

"'Business      Men's     League     of  "'Spokane   v.   N.   P.   R.   Co.,   19 

St.  Louis  V.  Atchison,  T.  &  S.  F.  L   C.   C.  162. 

Ry.   Co.,  9   L   C.   C.   318,  358,   359,  "'Taylor  Dry  Goods   Co.  v.   M. 

368;    California    Com.     Asso.     v.  P.  Ry.   Co.,  28  L   C.  C.  205. 
Wells  Fargo  Ex.  Co.,  14  I.  C.  C.  "=  Crouch    v.    G.    N.    R.    Co.,    11 

422;   Scofield  v.  Lake  S.   &  M.  S.  Ex.  742,  25  L.  J.  Ex.  137,  Baxen- 

R.    Co.,    2    L    C.    C.    90.    2    L    C.  dale  v.  L.  &  S.  W.  Ry.,  4  H.  & 

R.  67.  C.    130,    35    L.    J.    Ex.    108,    L.    R- 

»' Burlington,    C.    R.    &    N.    Ry.  1  Ex.  137,  12  Jur.  (N.  S.)  274,  14 

Co.  V.  Northwestern  Fuel  Co.,  31  L.  T.  26,   14  W.   R.  458. 


§  158.]  Equality  in  Rates.  267 

ing  to  different  persons  than  for  a  package  containing  several 
parcels  all  belonging  to  one  person.  The  English  rule  was  held 
by  the  majority  of  the  Commission,  Mr.  Commissioner  Lane 
writing  the  opinion,  to  be  the  law  in  the  United  States.^^  From 
this  rule  Commissioners  Knapp  and  Harlan  dissented.  The 
question  coming  before  the  circuit  court,  Circuit  Judges  La- 
combe,  Ward  and  Noyes  adopted  the  dissenting  opinion  of  Mr. 
Commissioner  Knapp. ^"^  It  is  difficult  to  see  what  interest  a  car- 
rier has  in  the  question  of  whether  or  not  the  several  packages 
constituting  a  car  load  of  freight  belong  to  one  or  more  persons. 
When  only  one  bill  of  lading  is  issued  and  only  one  person  is 
dealt  with,  why  should  a  carrier  ask  as  to  the  title  to  the  several 
parcels?  Does  not  the  rule  announced  by  the  court,  supra,  open 
an  opportunity  for  illegal  devices?  Suppose  a  shipper  claims  he 
owns  all  the  packages  and  they  are  billed  to  one  consignee,  it 
would,  in  some  cases,  be  impossible  to  prove  that  the  shipper's 
statement  was  not  true.  In  a  case  where  a  shipper  concealed  the 
true  ownership,  he  would  get  a  car  load  rating,  while  the  more 
honest  shipper  would  pay  the  higher  rate.  Discrimination  refers 
to  the  matter  of  carriage  and  character  of  the  commodity,  not 
to  the  cj[uestion  of  title.  If  the  shipments  move  in  the  same  way, 
with  the  same  expense  to  the  carrier,  and  are  of  like  kind  of 
traffic,  it  should  make  no  difference  whether  the  shipper  is  the 
real  owner  or  only  trustee  for  the  real  owners. 

§  158.  Car  Loads — Ownership  of. — The  next  preceding  sec- 
tion taken  from  the  first  edition  of  this  book  was  written  prior 
to  the  decision  of  the  Supreme  Court  in  the  Bulked  Shipment 
case.''^  In  that  case,  decided  April  3,  1911,  the  rule  announced 
in  the  text  was  stated  to  be  the  law.  In  the  course  of  the  opinion 
it  was  said : 

"The  contention  that  a  carrier  when  goods  are  tendered  to  him 

°'  California      Com.      Asso.      v.  Ct.   392,   citing  as   construing   the 

Wells  Fargo  Ex.  Co.,  14  I.  C.  C.  English    Equality    Clause,    Great 

422;  Export  Shipping  Co.  v.  Wa-  Western  R.  Co.  v.  Sutton,  1869— 

bash  R.  Co.,  14  I.  C.  C.  437,  and  L.   R.  4,   H.  L.  226,  38  L.  J.  Ex. 

cases  cited  in  the  prevailing  and  177,    22    L.    T.    43,    18   W.    R.    92; 

dissenting  opinions.  Evershed    v.    London    &    N.  W. 

"  Delaware,  L.  &  W.  R.  Co.  v.  Ry.  Co.,  1878—33  App.  Cas.  1029, 

Int.  Com.  Com.,  166  Fed.  499.  and  Denaby  Main  Colliery  Co.  v. 

""Int.   Com.   Com.  v.   Delaware,  Manchester,  etc.,  R.  Co.  1885 — 11 

L.    &  W.   R.    Co.,   220   U.    S.   235,  App.  Cas.  97. 
252,    253,    55    L.    Ed.    448,    31    Sup. 


268  Equality  in  Rates.  [§  159. 

for  transportation  can  make  the  mere  ownership  of  the  goods  the 
test  of  the  duty  to  carry,  or,  what  is  eciuivalent,  may  discriminate 
in  fixing  the  charge  for  carriage,  not  upon  any  difference  inher- 
ing in  the  goods  or  in  the  cost  of  the  service  rendered  in  trans- 
porting them,  but  upon  the  mere  circumstance  that  the  shipper 
is  or  is  not  the  real  owner  of  the  goods  is  so  in  conflict  with  the 
obvious  and  elementary  duty  resting  upon  a  carrier,  and  so  de- 
structive of  the  rights  of  shippers  as  to  demonstrate  the  un- 
soundness of  the  proposition  by  its  mere  statement." 

In  giving  the  reason  for  the  conckision  reached,  the  court  said : 

"Moreover,  the  unsoundness  of  the  contention  is  demonstrated 
by  authority.  It  is  not  open  to  question  that  the  provisions  of 
Section  2  of  the  act  to  regulate  commerce  were  substantially  taken 
from  Section  90  of  the  English  Railway  Clauses  Consolidated 
Act  of  1845,  known  as  the  EquaUty  Clause." 

The  principle  being  thus  established,  is  universally  followed. 

It  has  been  held  that  in  such  shipments  the  forwarding  agent 
is  so  far  the  agent  of  the  shipper  as  to  bind  him  by  a  contract 
for  released  rates. ^^ 

§  159.  Train  Loads. — The  usual  course  of  business  must  be 
considered  in  determining  questions  of  discrimination,  and 
while  there  may  be  some  basis  in  logic  for  the  claim  that  a  lower 
rate  a  car  should  be  made  on  train  loads  than  on  car  loads,  in 
fact  train  loads  are  rarely  used  and  such  a  unit  of  quantity  would 
not  be  equitable  or  justified.  This  principle  is  well  expressed  by 
the  Commission  as  follows : 

"Whatever  difference  there  may  be  in  the  cost  to  the  carrier 
between  traffic  in  train  loads  and  traffic  in  car  loads,  it  appears 
from  the  general  course  of  legislation  with  respect  to  commerce 
between  the  states,  from  the  debates  and  reports  of  the  various 
committees  in  Congress  when  the  act  to  regulate  interstate  com- 
merce was  under  consideration,  from  the  better  considered  court 
opinions,  and  from  the  reports  and  opinions  of  this  Commission, 
that  to  give  greater  consideration  to  train-load  traffic  than  to 
carload  traffic  would  create  preference  in  favor  of  large  shippers 
and  be  to  the  prejudice  of  small  shippers  and  the  public."^*^^ 

''Great  Northern  Ry.  Co.  v.  I.  C.  C.  592.  596;  Carstens  Pack- 
O'Connor,  232  U.  S.  508,  58  L.  ing  Co.  v.  Oregon  S.  L.  R.  Co., 
Ed.    703,   34    Sup.    Ct.    380.  17    I.    C.    C.    324.    328.      See    also 

""Anaconda      Copper      Mining  Sec.   116.  supra. 
Co.   V.   Chicago   &   E.   R.   Co.,   19 


§  160.]  Equality  in  Rates.  269 

§  160.  Classification  of  Commodities  Should  Be  Without 
Discrimination. — Classification  of  commodities,  like  any  other 
act  of  the  carrier  affecting  the  rate  to  be  charged,  must  be  rea- 
sonable and  such  classification  must  be  based  on  a  real  distinc- 
tion.i*^!  Unless  the  distinction  is  real,  it  would  violate  section 
two  of  the  interstate  commerce  act  and  discriminate  between 
"like  kinds  of  traffic."  A  uniform  classification  would  be  much 
better  than  the  differences  now  existing  in  that  respect  and  the 
commission  "has  sought  as  far  as  practicable  to  secure  the  estab- 
lishment throughout  the  country  of  a  uniform  classification  of 
freight."  ^^2  "We  have  seen  section  90  ante,  that  low  class  traffic  of 
prime  utility  and  moving  in  large  quantities  demands  a  low  rate. 
The  principles  of  classification  are  so  important  and  are  so 
clearly  stated  by  Prof.  Henry  C.  Adams,  former  Statistician  of 
the  Interstate  Commerce  Commission, ^''^  that  it  is  valuable  to 
reproduce  them  here : 

"Principles  underlying  freight  classifications. — It  was  discov- 
ered early  that  the  charges  for  transportation  of  different  arti- 
cles of  freight  could  not  be  apportioned  among  such  articles  with 
regard  alone  to  the  cost  of  carriage.  The  basis  of  determining 
the  charges,  it  was  found,  would  confine  to  narrow  limits  the 
movement  of  different  articles,  whose  bulk  or  weight  was  large 
in  comparison  to  their  value,  while  heavier  articles  with  less  bulk 
would  be  made  to  pay  disproportionately  low  rates. 

'"Under  the  system  of  apportioning  the  charges  strictly  to  the 
cost,  some  kinds  of  commerce  which  have  been  very  useful  to 
the  country  and  have  a  tendency  to  bring  different  sections  into 
more  intimate  business  and  social  relations  could  never  have 
amounted  to  any  considerable  magnitude,  and  in  some  cases 
could  not  have  existed  at  all,  for  the  simple  reason  that  the  value 
at  the  place  of  delivery  would  not  equal  the  purchase  price  with 
the  transportation  added.  The  traffic  would  thus  be  precluded, 
because  the  charge  for  carriage  would  be  greater  than  it  could 
bear.  On  the  other  hand,  the  rates  for  the  carriage  of  articles 
which,  with  small  bulk  or  weight,  concentrated  great  value  would, 
on  that  system  of  making  them,  be  absurdly  low  when  compared 
to  the  value  of  the  articles,  and  perhaps  not  less  so  when  the 

'"'Stowe-Fuller  Co.  v.  Pennsyl-  luth,  etc..  R.  Co.,  10  I.  C.  C.  R. 
vania  Co.,  12  I.  C.  C.  R.  215,  220.        489,    504. 

'""Duluth    Shingle    Co.    v.    Du-  "'Railways    in    United    States, 

part   2,    pp.    14,    15. 


270  Equality  in  Rates.  [§  160. 

comparison  was  with  the  value  of  the  service  in  transporting 
them. 

"Accordingly,  it  was  found  not  to  be  unjust  to  distribute  the 
entire  cost  of  service  among  all  articles  carried  on  a  basis  that 
gave  greater  consideration  to  the  relative  value  of  the  service 
than  to  the  cost.  Such  a  method  would  be  most  beneficial  to  the 
country ;  it  would  enlarge  commerce  and  extend  communication, 
and  would  be  better  for  the  railroads  because  of  the  increased 
traffic  which  would  be  brought  to  them. 

"The  value  of  the  article  carried  under  this  system  would  be 
the  most  important  element  in  determining  what  freight  charge 
it  should  bear.  Other  considerations,  however,  equally  important 
must  not  be  overlooked  when  the  freight  classification  is  to  be 
made.  The  classification  as  now  constructed  have  for  their  foun- 
dation the  following  elements : 

"The  competitive  element  or  the  rates  made  necessary  by 
competition. 

"The  volume  of  the  business — that  is,  the  tonnage  movement. 

"The  direction  in  which  the  freight  moves,  that  is,  whether  it 
moves  in  the  direction  in  which  most  of  the  freight  is  transported 
or  in  the   reverse   direction   in   which   empty  cars   are   running. 

"The  value  of  the  article. 

"The  bulk  and  weight. 

"The  degree  of  risk  attending  transportation. 

"The  facilities  required  for  particular  or  special  shipments. 

"The  conditions  attending  transportation,  such  as  furnishing 
special  equipment,  as  in  the  case  of  private  dressed-beef  cars 
or  cars  specially  adapted  for  freight  of  a  perishable  nature,  or 
cars  of  large  size  for  freight  of  extraordinary  bulk. 

"Another  condition  which  has  also  received  consideration  is 
the  analogy  which  the  new  articles  to  be  classified  bear  to  other 
articles  found  in  the  classification. 

"The  conditions  under  which  railroad  coiiipanies  can  afiford 
to  transport  traffic  have  a  large  influence  in  determining  the 
classification. 

"These  are  the  general  rules  under  which  classifications  arc 
constructed,  and  while  to  a  large  extent  controlling,  the  classi- 
fications are,  notwithstanding,  in  a  great  measure  a  series  of 
compromises,  the  participants  in  which  are  not  alone  the  rail- 
roads, but  also  the  shippers  and  representatives  of  business  in- 
terests throughout  the  country,  the  latter  being  afiforded  ample 


§  161.]  Equality  in  Rates.  271 

opportunity  to  join  with  the  railroads  in  the  discussion  as  to  the 
proper  classification  of  articles  of  shipment  afifecting  their  in- 
terests. 

"While  the  pressure  for  reductions  is  very  strong  from  certain 
localities,  concessions  are  not  now  so  readily  granted,  as  the 
territory  covered  by  the  freight  classifications  is  so  large  that 
great  care  in  the  assignment  of  articles  to  particular  classes  must 
be  taken  in  order  to  avoid  working  an  injury  to  any  particular 
section.  The  commercial  and  transportation  interests  are  re- 
garded as  identical,  and  the  welfare  of  the  whole  territory  and 
all  interests  afifected  must  be  considered.  It  is,  however,  occa- 
sionally observed  that  particular  localities  are,  to  some  extent, 
preferentially  served  by  the  action  of  carriers  who  resist  pro- 
posed changes  in  the  classification  for  the  reason  that,  in  their 
opinion,  they  wnll  operate  to  the  prejudice  of  certain  patrons. 
Thus  exceptions  to  the  classification  are  created  by  a  road  con- 
tinuing to  carry  some  articles  at  one  class,  while,  in  the  opinion 
of  a  majority  of  the  roads  using  the  classification,  the  articles 
could  well  stand  a  higher  rating." 

§  161.  Uniform  Classification. — Efforts  to  obtain  uniformity 
in  the  classification  of  commodities  have  been  made  since  the 
date  of  the  original  Act  to  Regulate  commerce,  and  probably  even 
before  that  date.  Some  success  has  attended  these  efforts  but 
uniformity  is  far  from  being  accomplished.  Beginning  at  page 
453  of  volume  25  of  the  Interstate  Commerce  Commission  Re- 
ports is  given  a  history  of  these  efforts  since  1887.  In  the  same 
case  in  which  that  history  is  given  the  Commission  stated  some 
principles  which  should  be  applied  to  all  attempts  to  reach  uni- 
formity. Says  the  Commission :  "The  making  of  a  freight  clas- 
sification is  a  great  pubHc  function,"  and  further:  "No  great 
reform  like  classification  reform,  which  touches  every  interest  in 
the  country,  can  ever  hope  to  be  carried  into  efifect  without  caus- 
ing disturbances,  annoyance,  and  opposition,  and  some  injustice. 
It  is  therefore  especially  important  that  before  a  classification 
committee  publishes  new  rules,  descriptions,  packing  require- 
ments, and  ratings,  full  public  hearings  shall  have  previously 
been  given  after  sufficient  notice.  It  is  not  necessary  to  hear 
everybody.  In  making  a  classification  that  would  mean  endless 
repetition  and  interminable  controversy  without  ever  reaching  a 
conclusion.     Rather  is  it  important  to  hear  everything.     In  other 


272  Equality  in  Rates.  [§  162. 

words  a  body  of  experts  in  classification  should  hear  and  know 
everything  and  then  form  their  conclusions."^*^'* 

Should  a  uniform  classification  result  from  the  efforts  there- 
for now  being  put  forward,  the  benefit  would  extend  to  both 
carriers  and  shippers.  We  now  have  three  general  classifications : 

First.  The  official  classification,  which,  speaking  generally, 
applies  north  of  the  Ohio  and  Potomac  Rivers  and  East  of  Chi- 
cago and  Mississippi  river. 

Second.  Southern  classification,  applying  generally  to  the  ter- 
ritory south  of  the  Ohio  and  Potomac  Rivers  and  east  of  the 
Mississippi  River. 

Third.  The  western  classification,  applying  to  that  territory 
not  included  in  the  other  two  classifications. 

Besides  the  three  general  classifications  referred  to  there  are 
classifications  published  by  the  railroad  commissions  of  the 
States  of  Illinois,  Iowa,  Georgia,  North  Carolina  and  Florida, 
applying  locally  on  shipments  moving  between  points  in  those 
states.  Between  points  in  the  State  of  Texas  the  western  classi- 
fication governs  in  connection  with  an  exception  sheet  published 
by  the  railroad  commission  of  that  state.  There  is  also  a  classi- 
fication known  as  the  New  England  Freight  Classification,  which 
governs  the  class  rates  between  points  on  the  eastern,  western 
and  northern  divisions  of  the  Boston  and  Maine  Railroad. 

§  162.  Power  of  Commission  over  Classification. — The 
Commission  has  the  power  to  prohibit  a  classification  that  works 
a  discrimination.  This  power  was  exercised  by  the  commission 
and  a  forcible  and  illustrative  opinion  written  by  Mr.  Commis- 
sioner Knapp  in  Proctor  &  Gamble  z'.  Cincinnati,  H.  &  D.  Ry. 
Co.^**^  This  order  of  the  Commission  was  enforced. ^^^  The 
Supreme  Court,  Mr.  Justice  White  delivering  the  opinion,  con- 
cluded the  discussion  of  the  question  by  saying: 

"Whatever  might  be  the  rule  by  which  to  determine  whether 
an  order  of  the  Commission  was  too  general  where  the  case  with 
which  the  order  dealt  involved  simply  a  discrimination  as  against 
an  individual,  or  a  discrimination  or  preference  in  favor  of  or 

r  Re     Western      Classification,  ""  Proctor  &  Gamble  v.  Cincin- 

25  I.  C.  C.  442,  450,  451,  et  seq.;  nati,  H.  &  D.  Ry.  Co.,  9  I.  C. 
Western    Trunk    Line    Rules,    34       C.  440. 

I.   C.   C.   554.     See  also   Sec.   160,  '"^  Cincinnati,  H.   &  D.  Ry.   Co. 

supra.  r.  Int.  Com.  Com..  206  U.  S.  142, 

51  L.  Ed.  995,  27  Sup.  Ct.  648. 


§  163.]  Equality  in  Rates.  273 

against  an  individual  or  specific  commodity  or  commodities  or 
localities,  or  as  applied  to  territory  subject  to  different  classi- 
fications, and  we  think  it  is  clear  that  the  order  made  in  this  case 
was  within  the  competency  of  the  Commission,  in  view  of  the 
nature  and  character  of  the  wrong  found  to  have  been  com- 
mitted and  the  redress  which  that  wrong  necessitated.  Finding, 
as  the  Commission  did,  that  the  classification  by  percentage  of 
common  soap  in  less  than  car  load  lots  operating  throughout 
official  classification  territory,  brought  about  a  general  disturb- 
ance of  the  relations  previously  existing  in  that  territory,  and 
created  discriminations  and  preferences  among  maufacturers 
and  shippers  of  the  commodity  and  between  localities  in  such 
territory,  we  think  the  Commissions  was  clearly  within  the  au- 
thority conferred  by  the  act  to  regulate  commerce  in  directing 
the  carriers  to  cease  and  desist  from  further,  en  forcing  the  clas- 
sification operating  such  results." 

The  subject  is  one  which  involves  so  many  facts  that  only  the 
general  principles  come  within  the  purview  of  this  book.  In  a 
report  of  nearly  two  hundred  pages  the  Commission  has  dis- 
cussed the  subject,  cited  illustrative  decisions,  given  the  history 
of  eft"orts  for  uniform  classification,  and  announced  applicable 
principles.  ^'^' 

§  163.  Milling  in  Transit. — The  Interstate  Commerce  Act  in 
force  prior  to  the  amendment  of  June  29,  1906,  was  construed 
as  giving  th^  Commission  no  power  to  compel  carriers  to  grant 
the  privilege  known  as  milling  in  transit. ^^^  This  privilege  is  de- 
scribed and  its  legality  discussed  by  Mr.  Commissioner  Prouty 
as  follows :  ^^^ 

"Generally  in  its  application  the  raw  material  pays  the  local 
rate  into  the  point  of  manufacture ;  when  afterwards  the  manu- 
factured product  goes  forward  it  is  transported  upon  a  rate 
which  would  be  applicable  to  that  product  had  it  originated  in 
its  manufactured  state  at  the  point  where  the  raw  material  was 
received  for  transportation,  whatever  has  been  paid  into  the 
mill  being  accounted  for  in  this  final  adjustment.  Ufider  this 
or  some  equivalent  arrangement  at  the  present  time  grain  of  all 

""Re      Western     Classification,  '""Diamond    Mills    Co.    v.    Bos- 

25  I.  C.  C.  442,  609.  See  also  In-  ton  &  M.  R.  Co.,  9  I.  C.  C.  311. 
terior   Iowa    Cites   Case,  28   I.   C.  '"^  Central  Yellow  Pine  Assn.  z;. 

C.  G4.  Vicksburg,  S.  &  P.   R.  Co.,  10  I. 

C.   C.  193,  213,  214. 


274  Equality  in  Rates.  [§  163. 

kinds  is  milled  and  otherwise  treated  in  transit ;  flour  is  blended, 
cotton  is  compressed,  lumber  is  dressed  and  perhaps  otherwise 
manufactured ;  live  stock  is  stopped  off  to  test  the  market. 

"It  may  be  argued  wath  much  force  that  the  act  to  regulate 
commerce  does  not  sanction  arrangements  of  this  kind  and  the 
Commission  early  in  its  history  intimated  that  such  might  finally 
be  its  conclusion.  Crews  v.  Richmond  &  D.  R.  Co.,  1  I.  C.  C. 
Rep.  401,  1  Inters.  Com.  Rep.  703.  Such  practices  were,  how- 
ever, in  use  to  a  considerable  extent  at  the  time  of  the  passage 
of  the  act  and  since  then  they  have  become  universal.  To  abro- 
gate these  privileges  would  be  to  confiscate  thousands  and 
probably  millions  of  dollars  in  value  by  rendering  worthless 
industrial  plants  which  have  been  constructed  upon  the  faith  of 
their  continuation.  Nor  is  it  a  forced  construction  of  the  statute 
to  hold  that  when  the  product  finally  goes  forward  to  the  point 
of  consumption  it  but  completes  the  journey  upon  which  it  en- 
tered when  the  raw  material  was  taken  up.  There  can  be  no 
doubt  that  the  application  of  this  principle  has  cheapened  the 
cost  of  transportation  and  probably  of  manufacture.  The  com- 
mission finally  held.  In  re  Unlawful  Rates  in  the  Transporta- 
tion of  Cotton,  8  I.  C.  C.  Rep.  121,  that  cotton  might  be  com- 
pressed in  transit." 

The  Commission  has  said:^^*^ 

"The  stopping  of  a  commodity  in  transit  for  the  purpose  of 
treatment  or  reconsignment  is  in  the  nature  of  a  special  privilege 
which  the  carrier  may  concede,  but  which  the  shipper  can  not, 
in  the  present  state  of  the  law,  demand  as  a  matter  of  lawful 
right.  Carriers  may  not,  however,  discriminate  between  markets 
nor  between  individuals  in  the  granting  of  such  privileges." 

In  the  Diamond  Mills  case,  supra,  the  Commission  said:  "A 
complete  system  of  interstate  railway  regulation  would  probably 
give  the  regulating  body  authority  to  determine  when  privileges 
of  this  kind  should  be  accorded,  and  upon  what  terms,  for  they 
all  enter  into  and  are  really  part  of  the  rate." 

The  Hepburn  amendment  has  given  to  the  Commission  the 
right  and  power  to  regulate  these  matters.  Section  one  of  the 
act  to  regulate  commerce  as  it  now  exists^^^  provides :  "The 
term  'transportation'  shall  include     *     *     *    all  instrumentalities 


""St.   Louis   Hay   &    Grain    Co.  "^  Po.y^    Sec.    335. 

V.   Mobile   &  O.   R.   Co.,   11   I.   C. 
C.  R.  90,  101. 


4 


§  164.]  Equality  in  Rates.  275 

and  facilities  of  shipment  or  carriage  *  *  *  and  all  services 
in  connection  with  the  receipt,  delivery,  elevation,  and  transfer 
in  transit  *  *  *  storage  and  handling  of  property  trans- 
ported," and  it  shall  be  the  duty  of  every  carrier  subject  to  the  pro- 
visions of  this  act  to  provide  and  furnish  such  transportation 
upon  reasonable  request  therefor,  and  to  establish  through  routes 
and  just  and  reasonable  rates  applicable  thereto.  Under  this 
amended  law  the  Commission  has  required  milling  in  transit  to 
be  extended  so  as  to  prevent  discrimination. ^^^ 

In  the  1915  Western  Rate  Advance  case,  ^^^  it  appeared  that 
the  grain  rates  then  sought  to  be  advanced  were  sufficiently  high, 
that  the  flour  rates  which  were  the  proportional  or  remainder 
of  the  through  rates  were  too  low.  The  carriers  having  offered 
their  proof  on  the  theory  that  the  milling  in  transit  privilege 
should  continue,  it  was  pointed  out  by  the  Commission  that  the 
owner  of  the  grain  who  paid  the  high  local  rate  to  the  mill  or 
the  market  should  not  have  his  rates  increased,  because  the  re- 
mainder of  the  through  rate  was  too  low. 

§  164.  Rebilling. — Rebilling  is  a  privilege  granted  to  certain 
markets  and  consists  of  the  right  to  ship  a  commodity  from  the 
point  where  it  is  produced  to  a  distributing  market  where  the 
shipper  may  unload,  sort  and  clean  the  commodity,  thereafter 
shipping  the  same  amount  of  the  same  kind  of.  commodity  to  his 
customers,  not  at  the  local  rate  from  the  distributing  point  to 
the  final  destination  but  at  the  remainder  of  the  through  rate. 
Commissioner  Prouty  illustrates  the  practice  at  Kansas  City  as 
follows :  ^^-^ 

"During  the  period  covered  by  this  investigation,  which  was 
from  April  1st  to  July  7th,  1896,  and  for  a  considerable  period 
prior  thereto,  the  rate  on  corn  from  Kansas  City  to  Chicago  was 
20  cents  per  100  pounds.  Hutchinson,  Kansas,  is  a  station  upon 
the  Santa  Fe  Railway,  which  runs  from  there  through  Kansas 
City  to  Chicago,  111.  The  through  rate  from  Hutchinson  to 
Chicago  was  25  cents,  and  the  local  rate  from  Hutchinson  to 
Kansas   City    13^2    cents.     A   shipper   from   Hutchinson   would 

""Southern       Illinois       Miller's  "'Re    Alleged    Unlawful    Rates 

Asso.  V.  L.  &  N.  R.  Co..  23  I.  and  Practices  in  the  Transporta- 
C.   C.   672,   678.  tion   of   Grain,   7   I.   C.   C.   R.   240, 

"'Western  Rate  Advance  Case  241,  242,  247.  See  also  Re  Sub- 
11)15,  35   I.    C.   C.  497.  stitution    of   Tonnage    at    Transit 

Points,  18  I.  C.  C.  280. 


276  Equality  in  Rates.  [§  164, 

forward  a  car  load  of  corn  to  Kansas  City  and  pay  the  local 
rate  of  13j^  cents.  If  afterwards  he  concluded  to  send  this 
car  load  on  to  Chicago  he  might  ship  it  by  the  Santa  Fe  Road, 
or  by  any  other  road  between  the  two  points,  at  the  balance  of 
the  through  rate  from  Hutchinson.  The  Chicago  &  Alton  Rail- 
road, for  instance,  would  transport  this  car  load  of  corn  from 
Kansas  City  to  Chicago,  not  for  20  cents  per  100  pounds,  but  for 
11^  cents.  If  the  grain  was  sold  at  Kansas  City,  the  purchaser 
succeeded  to  the  right  of  sending  it  forward  at  the  reduced  rate. 

"When  the  shipper  shipped  this  car  load  of  corn  to  Kansas 
City  he  had,  as  an  ordinary  thing,  no  idea  or  purpose  as  to  its 
ultimate  destination.  It  might  be  eaten  in  Kansas  City ;  it 
might  be  sent  to  the  Chicago  market,  or  it  might  go  to  the  Gulf ; 
there  was  nothing  upon  any  of  the  papers  connected  with  its 
transportation  to  indicate  what  its  destination  beyond  Kansas 
City  was,  or  that  it  was  destined  to  any  point  beyond ;  but  if  he 
did  subsequently  elect  to  ship  it  beyond  Kansas  City,  the  rate 
to  any  point  he  might  select  was  the  difference  between  the 
through  rate  from  Hutchinson  to  the  point  of  destination  and 
the  local  rate  which  he  had  already  paid  from  Hutchinson,  and 
this  rate  was  always  different  from  the  rate  between  Kansas 
City  and  the  point  of  destination. 

"The  result,  of  course,  was  that  nearly  all  grain  was  shipped 
into  Kansas  City  upon  a  local  bill  of  lading  in  the  first  instance 
and  was  afterward  sent  forward,  if  it  finally  went  forward,  upon 
a  new  bill  of  lading  at  the  balance  of  the  through  rate.  The 
difference  between  the  through  rate  from  the  point  of  origin  to 
the  point  of  destination  and  the  local  rate  from  the  point  of  ori- 
gin to  Kansas  City  was  not  the  same  in  all  cases,  nor,  indeed,  in 
most  cases,  and  consequently  the  balance  of  the  through  rate  con- 
tinually varied." 

In  the  same  case  the  practice  was  declared  illegal  and  this 
rule  was  stated : 

"An  indispensable  element  in  every  through  shipment  would 
seem  to  be  a  contract  for  such  through  service ;  an  agreement  be- 
tween the  parties  at  the  inception  of  the  carriage  that  the  freight 
shall  be  transported  to  the  point  of  destination  at  the  through 
rate." 

Its  disapproval  of  the  practice  was  indicated  by  the  commis- 
sion in  the  cases  of  Mayor,  etc.,  of  Wichita  v.  Atchison,  T.  &  S. 


§  165.]  Equality  in  Rates.  277 

F.  Ry.  Co.,  9  I.  C.  C.  534,  and  Cannon  Falls  Elevator  Co.  v. 
Chicago,  etc.,  R.  Co.,  10  I.  C.  C.  650. 

§  165.  Rebilling — Found  Illegal. — In  the  Duncan  case  ^^^  the 
Commission,  speaking  through  Mr.  Commissioner  Clements,  de- 
scribes the  practice  and  states  the  conclusion  of  the  Commission 
as  follows : 

"It  is  contended  by  defendants  that  rebilling  or  reshipping 
is  on  the  same  basis  as  milling  in  transit  and  similar  privileges. 
There  is  no  case  before  us  in  this  case  against  milling  in  transit, 
but  it  appears  from  the  record  that  the  privilege  of  milling  in 
transit  is  accorded  uniformly  throughout  the  southeastern  terri- 
tory and  is  in  no  sense  applied  to  Nashville  or  any  other  par- 
ticular point  alone. 

"We  are  not  convinced  that  the  circumstances  and  condi- 
tions under  which  the  reshipping  privilege  is  accorded  at  Nash- 
ville are  so  dissimilar  from  those  obtaining  at  the  other  points 
involved  in  this  traffic  as  to  justify  giving  it  our  sanction  on 
that  ground.  However,  there  are  other  aspects  independent  of 
this  which  lead  us  to  regard  this  privilege  with  disfavor. 

"Illustrating  the  second  feature  of  the  complaint  as  to  the 
alleged  illegality  of  this  privilege,  the  following  example  is 
given :  A  Nashville  dealer  buys  2  cars  of  grain,  1  at  Memphis 
and  1  at  Louisville.  He  pays,  up  to  Nashville  on  a  Memphis 
car,  11  cents  per  100  pounds  and  on  the  Louisville  car  10  cents. 
Should  this  Memphis  car  burn,  after  being  put  in  the  ware- 
house, or  be  sold  at  Nashville,  he  would  have  two  expense  bills 
and  one  car  of  grain.  Should  he  sell  a  car  at  Atlanta,  the  Nash- 
ville merchant  would  naturally  use  the  Memphis  bill  which  shows 
a  payment  of  11  cents,  paying  the  balance  of  the  through  rate 
from  Memphis  to  Atlanta  of  9  cents.  He  has,  therefore,  shipped 
the  Louisville  car  to  Atlanta  for  a  total  of  19  cents,  when  the 
through  rate  from  Louisville  to  Atlanta  is  24  cents  and  the 
combination  of  locals  27  cents.  It  is  further  alleged  that  as  con- 
siderable grain  is  consumed  in  Nashville  there  is  always  a  sur- 
plus of  expense  bills  which  may  be  manipulated  in  order  to 
secure  a  cheaper  rate  than  that  provided  in  the  tariffs.  In  an- 
swer to  this  defendants  say  that  the  operation  of  the  reshipping 
privilege,  as  described  in  this  example,  is  limited  by  the  fact  that 
the  Memphis  car  of  grain  is  worth  more  to  the  dealer  at  Nash- 

"' Duncan  v.  N.  C.  &  St.  L.  Ry.    Co.,  16  I.  C.  C.  590. 


278  Equality  in  Rates.  [§  165. 

ville  than  the  St.  Louis  car,  by  reason  of  the  difference  in  the 
freight  rate,  and,  therefore,  Memphis  grain  is  not  sold  at  Nash- 
ville proper,  but  is  all  reshipped  to  the  southeast.  It  is  to  be 
noted  that  the  tariff's  of  the  carriers  contain  a  rule  which  pro- 
hibits trading  in  expense  bills,  and  it  is  hardly  probable  that 
such  a  rule  would  appear  if  the  manipulation  of  expense  bills  is 
impossible,  as  contended  by  defendants. 

"While  this  manipulation  of  expense  bills  may  not  be  prac- 
ticed to  the  extent  apprehended  by  complainants,  we  may  re- 
mark that  prohibitions  of  law  are  not  invariabl}'  directed  against 
illegal  acts  because  they  may  be  numerous ;  a  statute  may  be 
considered  equally  necessary  by  the  legislature  to  prevent  spo- 
radic or  isolated  acts  in  contravention  of  public  policy.  A  prac- 
tice or  privilege  which  permits  the  movement  of  a  single  ship- 
ment at  less  than  the  rate  lawfully  applicable  to  such  movement 
is  one  which,  the  Commission  has,  under  the  law,  no  alternative 
but  to  condemn. 

"In  considering  a  practice  at  Kansas  City  similar  to  the  one 
under  consideration  (Alleged  Unlawful  Rates  and  Practices,  7 
I.  C.  C.  240),  it  was  found  that  the  practice  of  handling  grain 
in  connection  with  this  privilege  was  manifestly  open  to  many 
abuses.  On  several  occasions  the  Commission  has  considered 
practices  of  a  more  or  less  similar  nature  and  has  uniformly  re- 
garded them  with  disfavor.  In  the  case  above  referred  to  the 
finding  was  based  upon  the  fact  that  the  movement  upon  which 
the  through  rate  was  applied  was  in  no  essential  sense  a  through 
movement,  and  we  find  the  same  to  be  true  with  respect  to  re- 
billing  or  reshipping  at  Nashville.  The  grain  upon  its  arrival 
at  Nashville  loses  its  identity,  and  in  every  respect  may  be  re- 
garded as  a  local  shipment.  There  is  hardly  a  single  incident 
of  a  through  shipment  involved  in  the  transaction — the  bill  of 
lading  is  local,  the  rate  is  local,  and  there  is  nothing  upon  paper 
connected  with  the  transaction  indicating  that  the  grain  is  to 
be  carried  beyond  Nashville.  If  it  is  the  intention  to  carry  it 
beyond,  there  is  no  present  idea  as  to  the  point  of  destination. 

"We  are  of  the  opinion  that  the  reshipping  or  rebilling  privi- 
lege and  the  application  of  rates  thereunder  obtaining  at  Nash- 
ville is  an  illegal  device  by  means  of  which  grain,  grain  pro- 
ducts, and  hay  may  be  transported  at  less  than  the  tariff  rate  ap- 
plicable thereto ;  and  further,  that  it  gives  to  Nashville  undue 
and  illegal  preference  and  advantage  and  subjects  other  points 


§  166.]  Equality  in  Rates.  279 

in  the  southeast  to  unjust  and  unreasonable  prejudice  and  dis- 
advantage. 

§  166.  Rebilling- — Illegal  Only  When  Unjustly  Discrimina- 
tory.— Subsequently  to  its  first  opinion  in  the  Duncan  Case  supra, 
the  Commission  in  an  investigation  "did  not  *  *  *  condemn 
rebilling  or  reshipping  as  such,"  and  in  a  second  opinion  there 
was  entered  a  finding  and  holding  that  the  privilege  there  under 
discussion  "constituted  an  unreasonable  preference  or  advan- 
tage and  undue  and  unreasonable  prejudice  and  disadvantage  in 
violation  of  section  3  of  the  act  to  regulate  commerce. "^^*^ 

The  Supreme  Court,  reversing  the  Commerce  Court,  sustained 
the  Commission's  order  in  the  second  case,  placing  its  conclu- 
sion more  on  section  4  than  on  section  3  of  the  act,  although  sec- 
tion 3  was  the  section  relied  on  by  the  shippers  and  in  the  opin- 
ion of  the  Commission.il"  Upon  further  hearing  the  Commis- 
sion reiterated  its  order. ^^^  The  Supreme  Court  has  indicated 
that  such  practice  is  discriminatory,  and  that  when  shipments 
are  made  at  the  remainder  of  the  through  rate,  carriers  are  es- 
topped to  say  that  such  remainder  is  not  a  fair  rate  on  all  traffic. 
That  court,  speaking  through  Mr.  Justice  Brewer,  said:ii^ 

■'Under  the  guise  of  a  rebilling  rate,  the  Vicksburg  merchant 
who  dealt  with  this  western  road  was  given  a  rate  of  3^  per 
cent  on  any  grain  that  he  might  see  fit  to  ship  to  Meridian. 
While  it  may  be  true  that  a  local  railway's  share  of  an  inter- 
state rate  may  not  be  a  legitimate  basis  upon  which  a  state  rail- 
road commission  can  establish  and  enforce  a  purely  local  rate, 
yet,  whenever,  under  the  guise  or  pretense  of  a  rebilling  rate, 
some  merchants  are  given  a  low  local  rate,  the  Commission  is 
justified  in  making  that  rate  the  rate  for  all.  It  is  not  bound 
to  inquire  whether  it  furnishes  adequate  return  to  the  railway 

^^^  Duncan  v.  N.  C.  &  St.  L.  Ry.  preliminary  injunction,  see  Nash- 

Co.,  21  I.   C.  C.  186.  ville    Grain    Exchange    v.   United 

'"United  States  v.  L.  &  N.  R.  States,     191     Fed.     37,     Opinion 

Co.,  235  U.  S.  314,  59  L.  Ed.  — ,  Commerce   Court  No.   46,  p.  165. 

35   Sup.    Ct.   113.  On  appeal  to  Supreme  Court,  see 

'"Duncan  v.  N.  C.  &  St.  L.  Ry.  United  States  v.  L.  &  N.  R.  Co., 

Co.,    35    I.    C.    C.    477.      For    the  235    U.    S.    314,    59    L.    Ed.   — ,    35 

further    history    of   the    case,    see  Sup.    Ct.   113. 

Louisville  &  N.  R.  Co.  v.  United  ""Alabama  &  V.  R.  Co.  v.  Rail- 
States,  197  Fed.  58,  Opinion  road  Com.  of  Mississippi,  203  U. 
Commerce  Court  No.  47,  p.  173.  S.  496,  51  L.  Ed.  298,  27  Sup.  Ct. 
For  same  case  on  application  for  1G3. 


280  Equality  in  Rates.  [§  167. 

company,  for  the  state  may  insist  upon  equality,  to  be  enforced 
under  the  same  conditions  against  all  who  perform  a  public  or 
quasi  public  service." 

§  167.  Rebilling.  Conclusion. — That  rebilling  offers  opportu- 
nity for  manipulation  of  expense  bills  can  not  be  doubted,  al- 
though that  fact  is  insufficient  to  show  that  the  practice  is  illegal. 
The  decision  of  the  Supreme  Court  sustaining  the  second  order 
in  the  Duncan  case  supra,  compares  a  reshipping  or  rebilling  rate 
with  a  local  rate,  and  holds  in  effect  that  when  such  rates  are  so 
compared,  the  lower  reshipping  rate  for  the  longer  haul  may  re- 
sult in  a  violation  of  the  fourth  section,  where  the  local  rate  for 
the  shorter  haul  is  higher.  That  such  might  be  the  result  is  true. 
If  there  are  no  reasons  why  there  should  be  a  reshipping  rate 
lower  than  a  local  rate,  the  reshipping  rate  by  whatever  name 
called  may  be  in  substance  but  a  local  rate.  Properly  con- 
sidered, the  opinion  of  the  Supreme  Court  applies  the  well 
known  principle  that  substance  and  not  form  should  be  the  de- 
termining factor.  Rebilling  rates  are  not  illegal  per  se,  and  such 
rates  become  unlawful  only  when  they  produce  a  discrimination 
prohibited  by  section  3  or  when  they  are  in  substance  local  rates 
and  violate  section  4.  The  final  opinion  of  the  Commission  in  the 
Duncan  Case  accords  with  this  conclusion. 

§  168.  Payments  to  Elevators. — Elevator  payments  mean 
that  when  a  carrier  brings  grain  to  the  markets  from  the  produc- 
ing territory  and  delivers  it  to  an  elevator  to  be  sacked  and 
graded,  it  pays  the  elevator  for  such  service  a  stated  amount.  In 
some  cases  the  same  payment  is  made  to  stores  and  warehouses 
having  sacking  facilities.  When  the  matter  first  came  before  the 
Commission,  it  was  not  declared  illegal,  although  there  Mr. 
Commissioner  Lane  dissented  in  a  strong  opinion.  Subse- 
quently, in  the  same  case,  the  particular  allowance  then  under 
investigation  was  declared  unlawful. ^-"^  The  whole  practice  was 
declared  illegal  in  Traffic  Bureau  Merchants'  Exchange  of  St. 
Louis  V.  Chicago,  B.  &  0.  R.  Co.^^^  These  elevator  payments 
were  shown  in  the  Duncan  case  supra,  to  have  been  made  not 
only  to  elevators  but  to  warehouses  and  even  stores  having  sack- 

^^  Re   Allowances   to    Elevators  ^"'  Traffic      Bureau      Merchants 

by  Union  Pac.  R.  Co.,  14  I.  C.  Exchange  of  St.  Louis  v.  Chi- 
C.  315.  cago,   B.   &   Q.    R.   Co.,   14   L   C. 

C.   317,   331. 


§  169.]  Equality  in  Rates.  281 

ing  facilities.  Such  payments  are  made  at  some  cities  and  de- 
nied to  others.  Some  men  ship  grain  who  can  not  obtain  the 
payments  because  they  may  not  have  "sacking  or  elevator"  facil- 
ities. 

Discrimination  when  it  exists  violates  both  sections  two  and 
three  of  the  act  to  regulate  commerce. 

There  is  a  provision  of  section  15  of  the  Act  to  Regulate  Com- 
merce under  which  the  owner  of  property  transported  who  ren- 
ders any  service  connected  with  the  transportation  or  who  fur- 
nishes any  instrumentalities  used  therein,  may  be  by  the  carriers 
compensated  therefor.^--  Applying  this  section,  the  Supreme 
Court  has  held  that  carriers  may  and  must  pay  the  owners  of 
grain  transported  for  elevating  such  grain. ^^s  Qf  course  the 
provisions  of  sections  1,  2  and  3  apply  and  the  payments  must  be 
reasonable  and  free  from  undue  or  unreasonable  preference  or 
advantage. 

§  169,  Transit  Privileges — ^Generally. — Ordinarily  the 
through  rate  from  point  of  origin  to  point  of  destination  is  less 
than  the  aggregate  of  the  intermediate  rates.  The  result  of  this 
generally  applied  and  now  statutory  rule  is  that  jobbers  and  man- 
ufacturers at  cities  intermediate  between  the  points  of  production 
and  of  consumption  can  not  compete  with  those  located  at  the  cit- 
ies at  or  near  to  the  points  of  consumption.  That  such  competition 
may  be  made  possible,  transit  rates  have  been  accorded  under 
which  the  commodity  may  be  stopped  at  the  intermediate  point 
for  cleaning,  milling,  sorting,  manufacturing  or  otherwise  treat- 
ing. After  such  stoppage  the  same  commodity,  or  the  same  kind 
of  commodity,  or  the  product  of  the  commodity,  may  be  trans- 
ported to  the  farther  destination  at  a  rate  less  than  the  local 
rate.  This  difference  between  the  remainder  of  the  through  rate 
or  the  transit  rate  being  accorded  because  the  commodity  had 
paid  a  charge  up  to  the  intermediate  point.  The  justification  for 
this  practice  is  commercial,  and  not  based  on  cost  of  service,  be- 
cause it  costs  no  more  to  move  a  commodity  originating  at  a 
particular  place  than  it  costs  to  transport  the  same  commodity 

""See    Sec.    404,    post.  Pac.  R.  Co.  v.  Updike  Grain  Co., 

"'Int.     Com.     Com.    v.    Diffen-  223  U.   S.   215,   56   L.   Ed.   171,   32 

baugh,   222   U.    S.   42,    56    L.    Ed.  Sup.      Ct.      39,      affirming      same 

83,  32  Sup.  Ct.  22,  modifying  de-  styled  case,   178  Fed.  223,   101   C. 

cree   in    Peavey    &   Co.   v.    Union  q    ^    2g2 

Pac.  R.  Co.,  176  Fed.  409;  Union 


282  Equality  in  Rates.  [§  169. 

which  has  received  a  prior  transportation  service.  In  speaking 
of  the  practice  the  Commission  said :  ^-^  "Transit  in  many 
cases  is  beneficial  in  its  apphcation.  When  it  can  be  applied 
without  discrimination  it  results  in  the  diffusion  of  business,  in 
giving  to  rival  communities  the  relative  advantages  to  which  they 
are  entitled,  and  which  can  be  accorded  them  in  no  other  way, 
and,  generally  speaking,  in  the  application  of  lower  transporta- 
tion charges.  The  commercial  operations  of  this  country  have 
in  many  instances  grown  upon  the  exercise  of  transit  privileges 
and  could  have  been  developed  in  no  other  way.  This  Commis- 
sion has  never  held  that  transit  was  to  be  condemned  in  so  far 
as  it  was  beneficial  and  could  properly  be  applied." 

There  are  possibilities  of  misusing  the  transit  rates,  these  the 
Commission  has  sought  to  guard  against.  Rules  have  been  an- 
nounced and  principles  stated  for  the  government  of  carriers  in 
respect  to  transit.  On  this  subject  the  Commission  has  said:^^^ 
"The  business  man  who  employs  the  transit  privilege  looks  upon 
it  as  a  useful  and  in  many  cases  as  an  exceedingly  profitable 
practice.  Indeed,  we  recognize  that  in  most  instances  transit  is 
now  a  commercial  necessity,  because  of  its  almost  universal  ap- 
plication and  on  account  of  the  development  which  certain  lines 
of  business  have  taken  entailing  heavy  investments."  There  is 
only  one  way  to  minimize  violations  of  the  law  at  transit  points 
and  that  is  by  the  adoption  of  unambiguous  rules  and  the  proper 
policing  thereof  to  reduce  the  opportunity  for  such  violations." 

Reshipping  rates,  transit  rates  and  proportional  rates,  all  rest 
upon  the  same  principles  and  are  not  illegal  merely  because  local 
rates  may  be  higher.  When  these  special  rates  are  accorded  to 
one  market  they  can  not  lawfully  be  withheld  from  another. 

Import  and  export  rates  are  made  on  proportionals,  and  "a 
carrier  may  lawfully  make  an  import  rate  from  a  port  in  the 
United  States  to  an  interior  destination  less  than  its  domestic  rate 
from  the  same  port  to  the  same  destination,"  but  different  rates 
can  not  be  made  on  the  proportional  in  the  United  States  based 


"*  Transportation       of       Wool,  Re    Substitution    of    Tonnage    at 

Hides  and  Pelts,  23   I.   C.   C.  151,  Transit   Points,    18    I.    C.    C.   280: 

171.  Transit   Case.   25   I.   C.   C.   130,  2C^ 

"'Transit  Case,  24  I.  C.  C.  340,  I.  C.  C.  204;  National  Casket  Co. 

349.       See     also     Fabrication-in-  v.   S.   Ry.   Co..   31    I.   C.   C.  678. 
Transit    Charges,   29   I.    C.    C.   70; 


§  170.]  Equality  in  Rates.  283 

upon  the  foreign  port  from  which  the  traffic  starts. ^-"^ 

§  170.  Allowances  to  Tap  Line  Railroads. — What  are  called 
tap  lines  were  described  by  the  Commission  as  follows :  ^-'' 
"While  these  logging  roads  are  almost  or  quite  without  excep- 
tion mill  propositions  at  the  outset,  built  exclusively  for  the  pur- 
pose of  transporting  logs  to  the  mill,  they  soon  reach  a  point 
where  they  engage  in  other  business  to  a  greater  or  less  extent. 
As  the  length  of  the  road  increases,  as  the  lumber  is  taken  off 
and  other  operations  obtain  a  foothold  along  the  line,  various 
commodities  besides  lumber  are  transported,  and  this  business 
gradually  develops  until  in  several  cases  what  was  at  first  a  log- 
ging road  pure  and  simple  has  become  a  common  carrier  of  mis- 
cellaneous freight  and  passengers.  Almost  all  these  lines,  even 
where  they  are  run  as  private  enterprises,  do  more  or  less  out- 
side transportation,  and  it  would  be  difficult  to  draw  any  line  of 
demarkation  between  the  logging  road  as  such  and  the  logging 
road  which  has  become  a  general  carrier  of  freight." 

In  many  instances  carriers  paid  divisions  of  the  through  rates 
to  these  tap  lines,  which  allowances  or  divisions  were  usually  for 
the  benefit  of  the  lumber  manufacturing  plant  generally  the 
owner  of  the  tap  line.  This  practice  was  described  by  the  Su- 
preme Court  as  follows :  ^-^  "The  railroads  west  of  the  Missis- 
sippi make  a  certain  allowance  to  the  mills  which  have  'logging 
roads' — that  is,  roads  by  which  logs  are  hauled  from  the  timber 
to  the  mills.  This  is  called  'tap-line  allowance  or  division.' 
*  *  *  fl^Q  mills  east  of  the  river  have  logging  roads  also,  but 
appellants  make  no  allowance  to  them.  ''^  *  *  There  does  not 
appear  to  be  any  reason  for  such  allowance  west  of  the  Missis- 
sippi which  does  not  apply  east  of  that  river,  and  it  amounts  to  a 
rebate  or  reduction  from  the  regularly  published  rate,  and  gives 
an  advantage  to  the  mills  west  of  the  Mississippi  over  those  east, 
although  the  published  rates  from  both  are  the  same." 

The  Commission  entered  into  a  general  investigation  as  to  the 
character  of  tap  lines  and  the  legality  of  allowances  thereto, 
after  which  it  was  determined  that  most  of  such  allowances  were 

""Texas    &   P.    Ry.    Co.   v.    Int.  V.   S.   &  P.   Ry.   Co.,   10   I.   C.   C. 

Com.   Com.,   162  U.   S.   197,  40   L.  193,   199. 

Ed.    940,    16    Sup.    Ct.    666;    New  '^Illinois  C.  R.   Co.  v.   I.  C.  C, 

Orleans    Board   of  Trade   v.    Illi-  206  U.  S.  441,  444,  51  L.  Ed.  1128, 

nois  C.  R.  Co.,  23  I.  C.   C.  465.  27    Sup.    Ct.    700. 

^Central  Yellow  Pine  Asso.  z;. 


284  Equality  in  Rates.  [§  171. 

unlawful,  amounting  in  effect,  when  paid  to  a  tap  line  owned  by 
the  manufacturing  plant  to  a  departure  from  the  lawful  rate.^^^ 

The  Supreme  Court,  referring  to  the  fact  that  the  transporta- 
tion of  lumber  was  excepted  from  the  commodities  clause  ^^^  of 
the  Commerce  Act,  reversed  the  Commission  and  held  that  if  the 
tap  line,  although  owned  by  the  manufacturing  plant  was  a  com- 
mon carrier  the  payment  of  a  division  thereto  was  not  illegal. 
The  Court  also  held  that  not  the  extent  to  which  a  railroad  is 
used,  but  the  right  of  the  public  to  demand  service  of  it,  deter- 
mined its  character  as  a  common  carrier.^^^  The  holding  of  the 
Supreme  Court  does  not  deprive  the  Commission  of  the  power 
to  regulate  tap  lines  participating  in  interstate  commerce.  As 
to  rates,  rules  and  practices,  the  Commission  has  power  over 
these  short  lines  to  the  same  extent  as  over  other  common  car- 
riers subject  to  its  jurisdiction. i"- 

§  171.  Allowances  to  Indtistrial  Tracks. — Except  for  the 
proviso  of  the  Commodities  clause  which  excepts  from  its  pro- 
visions thereof  "timber  and  the  manufactured  products  thereof," 
the  principles  applicable  to  allowances  to  industrial  railroads  are 
similar  to  those  applicable  to  divisions  to  tap  line  roads.  In  the 
first  Industrial  Railways  case  ^^^  the  Commission  said :  "The 
allowances  are  made  to  the  industries  or  to  their  subsidiary  rail- 
ways in  the  form  of  (a)  divisions  out  of  the  rate,  (b)  per  diem 
reclaims,  (c)  remission  of  demurrage  and  (d)  furnace  allow- 
ances." It  was  held  that  these  various  allowances  depleted  the 
revenues  of  the  carriers  and  were  generally  unlawful.  Follow- 
ing the  decision  of  the  Supreme  Court  in  the  tap  line  cases,  the 
Commission  modified  its  holding,  saying :  ^^-i  "Since  the  Su- 
preme Court  decided  the  tap  line  cases,  we  have  given  eflfect  to 
the  court's  decision  by  fixing  the  maximum  divisions  of  rates  or 
switching  allowances  which  the  tap  line  roads  may  receive  from 
the  trunk  line  carriers.     Since  that  time  we  have  also  decided  In 

"'■'  Tap  Line   Cases,  23   I.   C.   C.  '"^  Industrial   Railways   Case,  29 

277,    549.      Kaul    Lumber    Co.    f.  I.   C.   C.   212. 
C.  of  Ga.  Ry.  Co.,  20  L  C.  C.  450.  '='  Industrial  Railways   Case,  32 

""Sec.  343,  post.  I.  C.  C.  129,  131:  and  see  Manu- 

"'Tap  Line  Cases,  234  U.  S.  1,  facturers   Railway  Case,   32  I.   C. 

5b  L.  Ed.  1185,  34  Sup.  Ct.  741.  C.    100;    General   Elec.    Co.   v.   N. 

"'Tap   Line    Case,    31    I.    C.    C.  Y.   C.    &  H.   R.   R.    Co..   14   I.   C. 

490;    Joint    Rates    with    Birming-  C.    237:    Solvay    Process    Co.    -■. 

ham  Southern  R.  Co.,  32  I.  C.  C.  D.   L.   &  W.   R.   Co.,   14   I.   C.   C. 

110.  246. 


§  172.]  Equality  in  Rates.  285 

re  Joint  Rates  with  the  Birmingham  Southern  R.  R.  Co.,  32  I. 
C.  C.  110,  and  the  Manufacturers  Railway  Case,  32  I.  C.  C.  100, 
giving  effect,  in  each  instance,  under  the  facts  there  found,  to 
the  principles  announced  by  the  Supreme  Court.  The  General 
Electric  Company  case,  siipra^  the  Solvay  Process  Company 
case,  supra,  and  the  Crane  Iron  Works  case,  17  I.  C.  C.  514, 
were  decided  upon  the  facts,  circumstances,  and  conditions  ap- 
pearing in  connection  with  each.  Those  cases,  however,  differed 
from  the  tap  line  cases  and  from  the  instant  case  in  that  in  each 
of  the  former  cases  the  industrial  railway,  or  the  industrial  cor- 
poration which  in  fact  owned  it,  sought  to  have  us  require  the 
trunk  line  roads  to  accord  the  industrial  roads  allowances  or  di- 
visions which  the  trunk  line  roads  were  unwilling  to  accord  and 
which  they  contended  would  be  unlawful." 

While  allowances  may  be  made  to  some  industries  and  denied 
to  others  similarly  situated,  and  may  be  made  when  no  real  serv- 
ice is  performed  therefor  and  thus  be  unlawful,  such  allowances 
are  not  per  se  unlawful.  The  Commission  may  not  prohibit  all 
allowances  to  industrial  railroads,  but  it  may  regulate  the  prac- 
tice and  thereby  prevent  unlawful  discrimination  and  improper 
payments  when    no  service  is  rendered. ^-^-^ 

§  172.  Illegal  for  Carriers  to  Transport  Commodities  Pro- 
duced or  Owned  by  Them  or  in  Which  They  Are  Interested. 
— The  ownership  or  control  by  carriers  of  a  particular  com- 
modity gives  such  carriers  an  opportunity  to  transport  such 
commodity  and  sell  it  at  less  than  can  its  competitors  who  have 
no  means  of  transportation  and  must  pay  the  carrier  to  trans- 
port these  commodities  of  like  kind.  The  carrier  can  do  this 
because  it  can  forego  some  of  the  rate  its  competitor  must  pay, 
and,  therefore,  undersell  all  others.  This  evil  was  prevalent  and 
the  Commission  had  sought  to  remedy  it  so  far  as  it  could  with 
the  limited  power  it  had  in  this  respect  before  the  passage  of  the 
Hepburn  law.  Prior  to  the  passage  of  the  Hepburn  amendment 
containing  this  clause  the  Interstate  Commerce  Commission 
brought  its  bill  seeking  to  enjoin  a  contract  described  in  the  al- 
legation as  follows :  ^^'^ 

'''Car-Ferry   Allowances,   32    I.  ""New   York,    N.   Y.    &    H.    R. 

C.    C.    578;    St.    LouLs    Terminal  Co.  v.  Int.  Com.  Com.,  200  U.  S. 

Case,  34  I.  C.  C.  453;  Second  In-  361,    50    L.    Ed.    515,    20    Sup.    Ct. 

dustrial    Railways    Case,   34    I.    C.  272. 
C.   596,   and    cases    there   cited. 


286  Equality  in  Rates.  [§  173. 

"In  the  spring  of  1903  the  Chesapeake  &  Ohio  made  a  verbal 
agreement  with  the  New  Haven  to  sell  to  that  road  60,000  tons 
of  coal,  to  be  carried  from  the  Kanawha  district  to  Newport 
News,  and  thence  by  water  to  Connecticut,  for  delivery  to  the 
buyer  at  $2.75  per  ton,  and  that  a  considerable  portion  had  al- 
ready been  delivered  and  the  remainder  was  in  process  of  de- 
livery. It  was  averred  that  the  price  of  the  coal  at  the  mines 
where  the  Chesapeake  &  Ohio  bought  it,  and  the  cost  of  trans- 
portation from  Newport  News  to  Connecticut,  would  aggregate 
$2.47  per  ton,  thus  leaving  to  the  Chesapeake  &  Ohio  only  about 
28  cents  a  ton  for  carrying  the  coal  from  the  Kanawha  district 
to  Newport  News,  whilst  the  published  tariff  for  like  carriage 
from  the  same  district  was  $1.45  per  ton." 

Upon  this  allegation,  the  court  formulated  the  question  in- 
volved as  follows : 

"The  question,  therefore,  to  be  decided  is  this :  Has  a  carrier 
engaged  in  interstate  commerce  the  power  to  contract  and  sell 
and  transport  in  completion  of  the  contract  the  commodity  sold, 
when  the  price  stipulated  in  the  contract  does  not  pay  the  cost 
of  the  purchase,  the  cost  of  delivery,  and  the  published  freight 
rates  ?" 

The  evils  of  carriers  engaging  in  the  purchase  and  sale  of. 
commodities  transported  by  them  were  forcibly  pointed  out  in 
the  course  of  the  opinion. 

Cases  were  cited,  and  the  conclusion  was  to  direct  the  court 
below  to  issue  a  decree  "perpetually  enjoining  the  Chesapeake  & 
Ohio  from  taking  less  than  the  rates  fixed  by  its  published  tariff 
of  freight  rates,  by  means  of  dealing  in  the  purchase  and  sale  of 
coal." 

§  173.  Commodities  Clause  of  Act  1906. — It  is  obvious 
that  the  evils  pointed  out  so  forcibly  by  the  Supreme  Court 
apply  equally  where  the  carrier  puts  the  ownership  of  the  com- 
modity in  a  corporation  in  which  the  carrier  owns  all  the  stock, 
and  that  the  difference  is  only  in  degree  and  not  in  kind  where 
the  carrier  has  only  a  part  of  the  stock  in  the  corporation  owning 
the  commodity.  Congress,  by  virtue  of  its  plenary  power  to 
regulate  interstate  commerce,  sought  to  prevent  these  evils,  and 
the  prohibition  was  made  to  apply  where  the  carrier  had  an  in- 
terest, direct  or  indirect,  in  the  commodity  transported.  This 
clause  the  circuit  court  held  unconstitutional,  but  the  Supreme 


§  173.]  Equality  in  Rates.  287 

Court,  upon  appeal,  held  the  provision  valid  ^^~  as  construed, 
which  construction  is  as  follows : 

"We  then  construe  the  statute  as  prohibiting  a  railroad  com- 
pany engaged  in  interstate  commerce  from  transporting  in  such 
commerce  articles  or  commodities  under  the  following  circum- 
stances and  conditions:  (a)  When  the  article  or  commodity 
has  been  manufactured,  mined  or  produced  by  a  carrier  or  under 
its  authority,  and  at  the  time  of  transportation  the  carrier  has  not 
in  good  faith  before  the  act  of  transportation  dissociated  itself 
from  such  article  or  commodity;  (b)  When  the  carrier  owns 
the  article  or  commodity  to  be  transported  in  whole  or  in  part ; 
(c)  When  the  carrier  at  the  time  of  transportation  has  an  inter- 
est, direct  or  indirect,  in  a  legal  or  equitable  sense  in  the  article 
or  commodity,  not  including,  therefore,  articles  or  commodities 
manufactured,  mined,  produced  or  owned,  etc.,  by  a  bona  fide 
corporation  in  which  the  railroad  company  is  a  stockholder." 

"In  my  judgment  the  act,  reasonably  and  properly  construed, 
according  to  its  language,  includes  within  its  prohibitions  a  rail- 
road company  transporting  coal,  if,  at  the  time,  it  is  the  owner, 
legally  or  equitably,  of  stock — certainly,  if  it  owns  a  majority 
or  all  the  stock — in  the  company  which  mined,  manufactured 
or  produced,  and  then  owns,  the  coal  which  is  being  transported 
by  such  railroad  company.  Any  other  view  of  the  act  will  en- 
able the  transporting  railroad  company,  by  one  device  or  an- 
other, to  defeat  altogether  the  purposes  which  Congress  had  in 
view,  which  was  to  divorce,  in  a  real,  substantial  sense,  produc- 
tion and  transportation,  and  thereby  to  prevent  the  transporting 
company  from  doing  injustice  to  other  owners  of  coal." 

In  construing  the  clause  when  brought  before  it  the  second 
time  the  Supreme  Court  held  that  when  the  carrier  so  exercised 
its  power  as  a  stockholder  in  a  corporation  owning  the  com- 
modity as  to  deprive  such  corporation  of  actual  independent  ex- 
istence, that  the  commodities  so  owned  were  within  the  prohibi- 
tion of  the  law.^"^ 

When  a  carrier  organized  a  coal  company  to  which  its  coal 
projjcrties  were  leased  and,  although  the  stock  of  the  company 

'"United  States  v.  Delaware  &  "*  United  States  v.  Lehigh  Val- 

H.   Co.,  213  U.   S.  366,   415,   53   L.       Icy   R.    Co.,   220   U.    S.   257,    55    L. 
Ed.    836,    29    Sup.    Ct.    527.      For        F.d.   458,   31   Sup.   Ct.   387. 
opinion    of   lower    court,    see    1G4 
Fed.  215. 


288  Equality  in  Rates.  [§  174. 

so  organized  was  not  owned  by  the  carrier,  such  company  was  in 
substance  controlled  by  the  carrier,  it  was  held  that  the  com- 
modities clause  was  violated. ^^^ 

§  174.  Cars  Must  Be  Furnished  Without  Discrimination. 
— Transportation  includes  in  its  meaning  "cars,"  and  section 
one  of  the  Act  provides :  "Cars  shall  be  furnished  irrespective 
of  ownership  or  any  contract,  express  or  implied,  for  the  use 
thereof."^"*^  It,  therefore,  is  the  duty  of  carriers  subject  to  the 
Act  to  furnish  cars  without  any  unlawful  preference. 

In  the  Pitcairn  Coal  case,  ^"'i  the  Circuit  Court  of  Appeals 
prescribed  rules  for  coal  car  distribution.  The  Supreme  Court, 
however,  held  that  the  courts  had  no  jurisdiction  prior  to  action 
by  the  Interstate  Commerce  Commission,  and  the  lower  court 
was  reversed.    The  Supreme  Court  said : 

"The  distribution  to  shippers  of  coal  cars  including  those 
owned  by  the  shippers  and  those  used  by  the  carrier  for  its  own 
fuel  is  a  matter  involving  preference  and  discrimination  and 
wathin  the  competency  of  the  Interstate  Commerce  Commission, 
and  the  courts  can  not  interfere  with  regulations  in  regard  to 
such  discriminations  until  after  action  thereon  by  the  commis- 
sion."i-t2 

In  the  ]\Iorrisdale  Coal  Co.  case,  cited  note  supra,  it  was  con- 
tended that  "all  cars  in  the  district  should  be  distributed  accord- 
ing to  the  capacity  of  the  mine,  without  deducting  private  cars, 
foreign  fuel  cars,  or  the  carrier's  own  fuel  cars."  Answering 
this  contention,  the  Supreme  Court  said :  "Whether  this  should 
be  done  as  a  general  rule,  or  under  the  peculiar  conditions  pre- 
vailing on  defendant's  road  at  that  time,  was,  as  we  have  seen, 
an  administrative  question,  and  to  be  decided  by  the  Commission 
as  preliminary  to  the  right  to  maintain  this  suit." 

''"Post,  Sec.  343,  U.  S.  v.  Dela-  "-Baltimore    &    O.    R.    Co.    v. 

ware,  L.  &  W.  R.  Co.,  238  U.  S.  United   States,  215   U.   S.   481,  54 

516,    59    L.    Ed.    — ,    35    Sup.    Ct.  L.   Ed.  292,  30  Sup.   Ct.  164.     The 

873.      For   further   history    of   the  same    ruling    was    made    in    Int. 

litigation   relating  to   this   clause,  Com.  Com.  t'.  Illinois  C.  R.  Co., 

see    U.    S.    V.    L.    V.    R.    Co.,    225  215   U.    S.   452.    54   L.    Ed.   280,   30 

Fed.    399.  Sup.     Ct.     155:     Morrisdale    Coal 

''"Post,   Sec.   337.  Co.  v.   Pennsylvania   R.    Co.,   230 

'"United  States  ex  rel.  Pitcairn  U.  S.  304,  57  L.  Ed.  1474,  33  Sup. 

Coal    Co.    V.    Baltimore    &    O.    R.  Ct.  938 
Co.,  165  Fed.   113. 


§  174.]  Equality  in  Rates.  289 

While  the  question  of  the  reasonableness  of  a  rule  for  th(i 
distribution  of  cars  is  an  administrative  one  over  which,  when 
interstate  commerce  is  involved,  the  Commission  alone  has 
primary  jurisdiction ;  the  courts,  state  or  federal,  have  jurisdic- 
tion to  determine  whether  or  not  a  plaintiff  has  been  damaged  by 
the  failure  of  a  carrier  to  furnish  cars  ''upon  the  basis  of  the 
carrier's  own  rule  of  distribution."  ^^^  In  other  words,  what  is 
a  reasonable  rule  is  for  determination  by  the  Commission ; 
whether  or  not  an  established  rule  has  been  violated  with  re- 
sulting damage  is  a  judicial  question  within  the  purview  of  the 
courts. 

A  state  statute  requiring  a  railroad  corporation  to  furnish 
cars  within  a  reasonable  time  after  they  are  required,  recognized 
that  "a  reasonable  time  in  any  case  would  depend  upon  all  the 
circumstances  and  conditions  existing,  including  the  require- 
ments of  the  interstate  commerce  carried  on  by  the  corporation," 
was  held  valid  by  the  Supreme  Court  in  a  suit  originally  brought 
in  a  state  court,  in  which  court  plaintiff'  made  no  attack  what- 
ever upon  th£  carrier's  rules  for  car  distribution. ^■^■^ 

The  Commission  in  a  decision  rendered  prior  to  the  court's 
decision  in  the  Mulberry  Coal  case  (note  supra),  said:^'*^  "It 
is  the  duty  of  carriers  to  furnish  cars  suitable  to  transport  in 
safety  traffic  which  they  hold  themselves  out  to  carry." 

The  claim  of  exclusive  jurisdiction  made  in  that  case  is  prob- 
ably too  broad  a  claim,  although  there  is  little  doubt  that  the 
Commission  has  concurrent  jurisdiction  with  the  courts  in  cases 
where  there  is  a  refusal  upon  reasonable  request  to  furnish  cars 
for  interstate  transportation.  "Cars  must  be  furnished"  is  the 
language  of  the  statute,  and  for  any  violation  of  the  statute  the 
shipper  may  recover  damages.  If  the  claim  presents  an  admin- 
istrative question,  the  Commission  alone  has  jurisdiction.  If 
no  administrative  question  is  presented,  the  "person  or  persons 
claiming  to  be  damaged  *  *  *  may  either  make  complaint  to 
the  Commission  *  *  *  or  may  bring  suit  *  *  '''-  in  any 
district  or  circuit  court  of  the  United  States,"  or  under  the  res- 

'"Penn.  R.  Co.  v.  Puritan  Coal  berry    Hill    Coal    Co.,    238    U.    S. 

Co.,   237   U.   S.   121,   .59   L.   Ed.  — ,  275,    59    L.    Ed.    — ,    35    Sup.    Ct. 

35    Sup.    Ct.    484;    affirming   same  760;    affirming    same    styled    case 

styled    case,  237   Pa.   420,  85   Atl.  257    111.    80,    100    N.    E.    151. 

426,  Ann.  Cas.  1914B,  37.  "''Vulcan    Coal    &    Mining    Co. 

"'  Illinois     C.     R.     Co.    V.   Mul-  v.  I.  C.  C.  Co.,  33  I.  C.  C.  52,  64. 

—10 


290  Equality  ix  Rates.  [§  175. 

ervation  of  section  22.  in  any  state  court  of  competent  jurisdic- 
tion.i^c 

§  175.  Same  Subject — Principles  Applied  by  the  Commis- 
sion.— It  being  within  the  administrative  functions  of  the  Inter- 
state Commerce  Commission  to  determine  whether  or  not  h 
particular  distribution  violates  the  law,  the  same  question  is  pre- 
sented as  in  other  cases  of  discrimination.  In  determining  the 
question  as  to  coal  cars  the  Commission  has  accepted  and  applied 
certain  general  rules.  Obviously  one  coal  mine  may  need  and 
be  entitled  to  more  cars  than  another.  This  fact  makes  necessary 
the  rating  of  mines.  This  rating  can  be  made  by  determining 
th,e  physical  and  commercial  capacity  of  the  mine.  Clearly  to 
consider  only  the  physical  capacity  would  be  unjust,  as  that  ca- 
pacity might  not  be  even  approximately  reached.  How  this  phys- 
ical capacity  has  been  determined  was  described  by  the  Commis- 
sion as  follows : 

"The  physical  capacity  is  determined  by  the  thickness  of  the 
coal  seam,  the  number  of  rooms  or  working  places,  the  capacity 
of  the  underground  tram  tracks,  and  the  facilities  for  getting 
the  coal  out  of  the  mine  into  the  tipple,  and  from  the  tipple  into 
the  cars.  A  fixed  per  diem  value  is  assigned  to  a  man's  labor, 
taking  into  consideration  the  character  of  the  seam  upon  which 
the  work  is  to  be  done ;  and  the  number  of  places  in  which  a  man 
can  work  is  taken  into  account  regardless  of  the  number  of  men 
actually  employed."  ^*' 

The  method  of  determining  the  commercial  capacity  was  de- 
scribed by  the  Commission  as  follows  : 

"The  commercial  capacity,  or  the  requirements  of  a  mine  for 
cars  as  tested  by  its  actual  shipments,  is  arrived  at  by  taking  the 
•volume  of  the  shipments  made  by  a  mine  during  a  period  of  free- 
car  supply,  usually  of  four  months  and  generally  from  April  1 
to  August  1,  in  each  of  the  two  preceding  years.  The  three 
figures  expressed  in  coal  tons,  namely,  the  physical  capacity, 
the  commercial  capacity  for  the  first  year,  and  the  commercial 
capacity  for  the  second  year,  are  added  together  and  the  sum  is 
divided  by  three."  ^^^ 

"'Sees.  8,  9  and  22  of  the  Act.  "'Hillsdale    Coal    &    Coke    Co. 

Sees.    382,    383   and   443,   post.  ::    Pennsylvania   R.    Co..   19   I.   C. 

"'  Rail  &  River  Coal  Co.  v.  Bal-       C.  356,  359,  360. 
timore   &  O.   R.   Co.,  14   I.   C.   C 
86,  93,  94. 


§  175.]  Equality  in  Rates.  '  291 

In  the  Hillsdale  Coal  &  Coke  Co.  case,  supra,  speaking  of  the 
methods  of  rating  by  thus  determining  the  physical  and  com- 
mercial capacity  of  the  mines,  the  Commission  said : 

"After  a  careful  consideration  of  the  system  as  applied  to  in- 
terstate shipments,  we  are  inclined  to  think  *  *  *  j-ii^l-  j^ 
method  of  rating  coal  mines  based  upon  a  combination  of  their 
physical  and  commercial  capacities  more  closely  approximates 
their  actual  car  requirements  than  a  system  based  upon  physi- 
cal capacity  only." 

The  Commission  in  the  Hillsdale  case,  supra,  in  summing  up 
the  principles  adopted  in  previous  cases,  said : 

"The  general  status  of  the  question  before  the  Commission  may 
be  readily  ascertained  by  an  examination  of  our  decisions  in  one 
or  two  formal  proceedings  since  the  passage  of  the  so-called 
Hepburn  Act.  In  Railroad  Commission  of  Ohio  v.  H.  V.  Ry. 
Co.,  12  I.  C.  C.  Rep.  398,  we  held  that  while  a  carrier  during 
periods  of  car  shortage  might  not  assign  privately  owned  cars 
to  operators  other  than  their  own  owners,  and  might  not  assign 
foreign  railway  fuel  cars  to  any  mines  except  those  to  which 
they  had  been  manifested  by  the  foreign  lines,  it  must  neverthe- 
less count  all  such  cars  against  the  distributive  share  of  the  re- 
spective mines  to  which  the  private  cars  belonged  or  to  which  the 
foreign  railway  fuel  cars  had  been  consigned ;  and  in  case  the 
private  cars  or  foreign  railway  fuel  cars  so  delivered  to  a  mine 
were  not  sufficient  to  fill  out  its  distributive  share  of  available 
coal  cars,  it  should  have  in  addition  only  so  many  of  the  system 
cars  of  the  carrier  as  might  be  necessary,  when  added  to  the 
private  or  foreign  railway  fuel  cars  so  received  by  it,  to  make 
up  its  full  ratable  proportion  of  the  total  available  coal  cars  of 
all  classes.  We  also  held  that  all  foreign  railway  fuel  cars  con- 
signed to  a  particular  operator,  and  all  private  cars  owned  by  a 
particuar  operator,  must  be  delivered  to  that  operator,  even 
though  their  number  might  exceed  the  ratable  proportion  of  the 
particular  mine  in  the  distribution  of  available  cars-" 

These  general  principles  were  held  by  the  Supreme  Court 
to  be  such  as  the  Commission  might  legally  apply,' "^^  but  that 

""  Int.  Com.  Com.  z'.  Illinois  C.  Sup.    Ct.    1G3.      For   cases    of    the 

R.   Co.,  215   U.    S.   4.52,   54   I,.   Ed.  Commission    discussing   the    gen- 

280,    30    Sup.    Ct.    155;    Int.    Com.  eral     question     see^        Richmond 

Com.    V.    Chicago    &    A.    R.    Co.,  Elevator    Co.   v.    Pere    Marquette 

215   U.    S.   479,    54   L.    Ed.   291,   30  R.   Co.,    10   I.    C.    C.   C29,   635,   637, 


292  Equality  in  Rates.  [§  176. 

court  in  the  Morrisdale  Coal  Co.  case,  supra,  summed  up  the 
Commission's  cases  by  saying: 

"It  was,  however,  recognized  that  there  could  be  no  hard 
and  fast  rule,  and  that  circumstances  might  arise  which  would 
otherwise  warrant  a  departure  so  as  to  enable  the  carrier  lo 
meet  emergencies  arising  from  a  strike  on  its  road,  or  embargoes 
by  connecting  lines." 

The  duty  to  furnish  cars,  a  facility  of  transportation,  without 
undue  discrimination  or  unjust  preference,  applies,  of  course, 
to  all  kinds  of  traffic  moved  by  the  carriers. i'"*'^ 

§  176.  Freight  Charges  Must  Be  Collected  Without  Dis- 
crimination.— One,  if  not  the  principal,  purpose  of  the  Act  to 
Regulate  Commerce  being  to  prevent  every  form  of  discrimina- 
tion, favoritism  and  inequality, ^^^^  and  it  being  the  purpose  of 
Congress  "that  all  shippers  should  be  treated  alike,"  and  the  in- 

Gallogly    7'.    Cincinnati,    H.    &    D.  States  ex  rel.   Greenbrier   Coal   & 

R.    Co.,    11    I.    C.     C.    1;    Parks  Coke    Co.   v.    Norfolk    &   W.   Ry. 

z>.   Cincinnati  &  M.  V.  R.   Co.,   10  Co.,  143  Fed.  266,  74  C.  C.  A.  404; 

I.   C.   C.   47;   Thompson   z\   Penn-  State  ex  rel.  v.  Cincinnati,  N.  O. 

sylvania   R.   Co.,   10   I.   C.   C.   640;  &  T.  P.  Ry.  Co.,  47  Ohio  St.  130. 

Hawkins    v.    Wheeling    &    L-    E.  23    N.    E.    928;    United    States   ex 

R.  Co.,  9  I.  C.  C.  212;  Glade  Coal  rel.  Pitcairn  Coal  Co.  v.  Baltimore 

Co.    V.    Baltimore    &    O.    R     Co.,  &  O.   R.   Co.,   154   Fed.    108;    Illi- 

10   I.    C.    C.  226,   and   cases   there  nois    Cent.    R.     Co.    v.     Mulberry 

cited    and     discussed;     Powhatan  Hill    Coal   Co.,   238   U.   S.   275,   59 

Coal    &    Coke    Co.    z:    Norfolk    &  L.  Ed.  — .  35  Sup.  Ct.  760;  Vulcan 

W.     Ry.     Co.,     13     I.     C.    C.    69;  Coal  Mining  Co.  v.  I.  C.  R.  Co., 

Traer    z:    Chicago    &   A.    R.    Co.,  33  I.  C.  C,  52  and  cases  cited.     In 

13   I.   C.   C.  451;  Jacoby  v.   Penn-  Pennsylvania    Parafine   Works   v. 

sylvania   R.   Co.,   19   I.   C.   C.   392;  P.   R.     Co.,    34   I.   C.    C,   179;   the 

Bulah    Coal    Co.   v.    Pennsylvania  question    of    furnishing    cars    was 

R.   Co.,  20   I.   C.   C.   52;    Re   Coal  discussed    at     some     length     and 

Rates   Stony    Fork   Branch,   26   I.  many   precedents   cited.     The   or- 

C.  C.  168.     For  other  than  Com-  ders  in  the  Vulcan  Coal  case  and 

mission    cases    see:      Logan    Coal  in    the     Parafine     case    are    being 

Co.   V.    Pennsylvania    R.    Co.,    154  contested  in  the  courts. 
Fed.  497;    United    States    ex    rel.  ''"Re  Advance   Rates   on   Pota- 

Cofifman    z\    Norfolk    &    W.    Ry.  toes.  25  I.  C.  C.  159,  169;  Galves- 

Co.  (C.  C),  109  Fed.  831;  United  ton    Commercial   Assn.   v.   Atchi- 

States  ex  rel.  Kingwood  Coal  Co.  son,  T.  &  S.  F.  Ry  Co.,  25  I.  C. 

V.   West  Virginia  &  N.  R.  R.  Co.  (C.  C.  216,  228. 

C.)    125   Fed.  252;  West  Virginia  '"  Louisville    &    N.    R.     Co.   v. 

&  N.   R.   Co.,?7.  United  States   ex  Mottley,  219  U.  S.  467,  55  L.  Ed. 

rel.  Kingwood  Coal  Co.,  134  Fed.  297,  31  Sup    Ct.  265. 
198,     67     C.     C.    A.     220;    United 


§  177.]  Equality  in  Rates.  293 

tention  of  the  Act  being  "to  prohibit  any  and  all  means  that 
might  be  resorted  to  to  obtain  or  receive  concessions  and  rebates 
from  the  fixed  rates  duly  posted  and  published,"  ^^-  it  would 
seem  to  be  clear  that  a  carrier  should  not  extend  to  one  shipper 
a  credit  and  refuse  another  shipper  in  like  situation  the  same 
extension.  It  would  seem  to  be  equally  clear  that  whatever 
privilege  was  extended  must  be  stated  in  the  published  tarififs.^^-'' 

§  177.  Right  of  Carrier  to  Route  Shipments  beyond  Its 
Own  Terminus. — In  the  absence  of  a  contract  specifying  the 
routing,  the  carrier  may  route  freight  passing  beyond  its  own 
lines  over  any  other  reasonably  convenient  line.  If  there  is  a 
contract  on  the  subject,  or  if  the  shipper  gives  instructions,  the 
carrier  must  of  course,  comply  therewith.  In  the  absence  of  in- 
structions, the  carrier  should  route  by  the  most  direct  and 
cheapest  route. ^•''■*  There  was  nothing  in  the  act  to  regulate 
commerce  before  the  amendment  of  June  29,  1906,  that  would 
make  illegal  a  contract  by  which  an  initial  carrier  reserved  to  it- 
self, as  a  condition  of  guaranteeing  the  through  rates,  the  right 
of  routing  the  shipment  beyond  its  own  line  as  it  might  deter- 
mine.^^^  The  Hepburn  amendment,  not  prohibiting  such  right 
nor  specifically  granting  the  power  to  the  commission  to  prohibit 
same,  the  carrier  may  yet  exercise  the  right,  provided,  of  course, 
no  undue  or  unjust  discrimination  results  to  shippers  thereby. 
The  commission  now  has  the  power  to  establish  through  routes 
and  joint  rates. 

§  178.  Discrimination  in  Billing. — An  unjust  discrimination 
may  be  committed  by  billing  one  commodity  under  a  classifica- 
tion to  which  it  does  not  belong  by  giving  it  a  false  weight  or 
value,  and  by  letting  one  commodity  go  at  the  net  weight 
and  denying  that  privilege  to  a  like  kind  of  traffic.  This  species 
of  discrimination  and  other  like  devices  and  means  are  prohibited 

"'Armour       Packing      Co.      v.  613;  United  States  z:  Erie  R.  Co., 

United  States,  209  U.  S.  56,  52  L.  209   Fed.   283. 

Ed.  681,  28  Sup.  Ct.  428.  '"Dewey     Bros.     Co.   v.     Balti- 

'■"So   held   in   United    States   v.  more    &   O.    R.    Co.,    11    I.    C.    C. 

Hocking  Valley  R.  Co.,  194  Fed.  481;      Hennepin     Paper      Co.     v. 

234.     See  Gamble-Robinson  Com.  Northern    Pac.    R.    Co.,    12    I.    C. 

Co.  V.  Chicago  &  N.  W.  Ry.  Co.,  C.  535. 

168  Fed.  161,  94  C.  C.  A.  217,  21  "'  Southern     Pac.     Co.    v.     Int. 

L.  R.  A.  (N.  S.)  982,  16  Ann.  Cas.  Com.   Com.,   200  U.   S.   536,   50   L. 

Ed.   585,   26   Sup.    Ct.   330. 


294  Equality  in  Rates.  [§  179. 

by  section  10  of  the  act  to  regulate  commerce  (see  post,  §  384). 
The  prohibition  of  the  statute  appHes  to  the  shipper  as  well  as 
the  carrier.  The  net  weight  practice  was  in  effect  a  rebate, ^^^ 
as  is  the  other  practices  mentioned,  all  of  which  are  but  devices 
violating  the  act,  and  subjecting  those  who  are  guilty  to  punish- 
ment. The  ofit'ense  is  committed  when  the  goods  are  billed-^ ^''' 
A  shipper  who,  by  misrepresentation,  obtains  a  lower  classifica- 
tion and  rate  than  he  is  entitled  to,  is  liable  to  the  carrier  for  the 
difference  between  the  rate  paid  and  the  rate  he  should  have 
paid  under  a  proper  billing."^ ^^  One  who  in  good  faith  by  mis- 
take incorrectly  describes  the  goods  is  not  subject  to  the  penal 
provision  of  the  act.^^^ 

§  179.  Tariffs  of  Rates  Must  Be  Printed,  Posted  and 
Maintained. — Xo  carrier  can  engage  in  interstate  transportation 
of  goods  "unless  the  rates,  fares,  and  charges  upon  which  the 
same  are  transported  by  said  carrier  have  been  filed  and  pub- 
lished." The  act  requires  not  only  the  filing  and  publishing  of 
such  "rates,  fares  and  charges,"  but  demands  that  the  pub- 
lished tariffs  must  be  charged  and  collected.  (See  post,  §§  358, 
364).  No  change  in  the  tariff  can  be  made  without  reasonable 
notice.  No  provisions  of  the  act  are  more  eft'ective  to  prevent  dis- 
crimination and  promote  equality  than  are  these.  The  courts  and 
the  Commission  have  sustained  and  enforced  these  provisions. 
It  has  sometimes  been  contended  that  they  are  unjust  when  ap- 
plied to  import  or  export  traffic.  It  is  true  that  such  provisions 
would  be  inapplicable  to  purely  water  traffic.  It  is  little  or  no 
more  expensive  for  a  ship  to  carry  her  full,  than  it  is  to  carry 
her  minimum  cargo.  For  this  reason,  as  a  ship's  sailing  day  ap- 
proaches and  her  cargo  has  not  been  obtained,  she  does  and 
should  be  allowed  to  reduce  her  rates,  thereby  obtaining  her  full 
load.  This  principle,  however,  does  not  apply  to  that  part  of 
a  through  export  or  import  movement  that  is  had  over  rail  car- 
riers. Ships,  as  well  as  individuals,  are  entitled  to  know  what 
the  land  movement  will  cost  and  to  have  this  cost  based  upon 
equality  of  charge.     There  is  nothing  in  the  law  that  makes  the 

""Proctor  &  Gamble  v.  Cinciii-  Trinity  Lumber  Co.,  1  Tex.   Civ. 

nati,  H.  &  D.  R.   Co.,  9   I.  C.   C.  App.    553,   21   S.   W.   290. 
R.  440,  484.  ^=' Atchison,  T.  &  S.  F.  Ry.  Co. 

"'Davis  V.    United    States.   104  v.  Goetz.  51  111.  Appl.  151;  Davis 

Fed.  136,  43  C.   C.  A.  448.  v.   Pere   Marquette   R.    Co.,    10   I. 

"*  Missouri,  K.  &  T.   R.   Co.  v.  C.  C.  405. 


§  179.]  Equality  in  Rates.  295 

rail  carrier  transport  its  domestic  freight  at  the  same  rate  as 
its  proportion  of  an  import  or  export  movement.^'^*^  On  this 
subject  the  Commission,  in  its  twenty-second  annual  report,  pp. 
14  and  15,  says  : 

"Effective  April  15,  1908,  and  in  exact  harmony  with  the  de- 
cision of  the  Commission  in  the  case  of  Cosmopolitan  Shipping 
Company  v.  Hamburg-American  Packet  Company  et  al.,  13  I. 
C.  C.  Rep.,  266,  a  regulation  was  promulgated  by  the  Commission 
requiring  that  tariffs  applying  on  traffic  exported  to  or  imported 
from  foreign  countries  not  adjacent  to  the  United  States  must 
show  the  rates,  fares,  and  charges  of  the  inland  carriers  subject 
to  the  act  for  such  transportation  to  the  port  and  from  the  port 
in  the  United  States,  and  that  such  rates,  fares,  and  charges  be 
so  stated  as  to  be  available  for  all  persons  who  desire  to  use 
them.  It  was  provided  that  as  a  matter  of  convenience  to  the 
public  such  tariffs  might  show  through  rates  to  or  from  foreign 
points,  but  that  if  so  prepared  they  should  also  show  the  inland 
rate  or  fare  of  the  carrier  subject  to  the  act. 

"Representations  were  made  to  the  Commission  that  trans- 
continental rail  carriers  reaching  our  Pacific  coast  ports  were,  on 
account  of  the  long  rail  haul,  at  a  disadvantage  in  competition 
with  other  carriers  serving  Atlantic  ports  and  transporting  Asi- 
atic traffic  via  the  Suez  Canal  route.  They  therefore  requested 
modification  of  the  requirements  as  to  notice  of  changes  in  rates, 
and  were  given  permission  to  make  changes  in  their  rates  appli- 
cable to  such  import  and  export  traffic  to  or  from  our  Pacific 
coast  ports  upon  notice  of  three  days  of  reduction  in  rates  and 
of  ten  days  as  to  advance  in  rates.  Subsequently,  by  supple- 
mental order,  the  same  permission  was  extended  to  carriers  sub- 
ject to  the  act  reaching  Pacific  coast  ports  in  British  Columbia. 

"The  rail  carriers  in  the  United  States  ordinarily  known  as 
the  transcontinental  lines  withdrew,  effective  November  1,  1908, 
all  their  through  import  and  export  rates  via  the  Pacific  ports 
and  applied  to  the  inland  carriage  of  export  and  import  traffic 
through  those  ports  the  domestic  rates  applicable  on  traffic  to 
and  from  the  ports  proper.  The  Canadian  Pacific  Railway,  in 
connection  with  a  large  number  of  carriers  in  the  United  States 
with  lines  east  of  the  Mississippi  River,  published  and  filed  pro- 


'""Tex.   &  Pac.    Ry.    Co.  v.   Int.       Ed.  940,  IG  Sup.  Ct.  GGG. 
Com.   Com.,   162  U.   S.   197,  40   L. 


296  Equality  in  Rates.  [§  180. 

portional  class  and  commodity  inland  rates  applicable  to  Van- 
couver, British  Columbia,  on  traffic  destined  to  oriental  ports, 
the  Phillipines,  Australia,  and  New  Zealand,  which  proportional 
rates  are  much  lower  than  the  domestic  rates  applying  on  traffic 
destined  to  Vancouver  proper.  These  tariffs,  as  permitted  by  the 
Commission's  rule  and  for  the  information  of  shippers,  show 
through  rates  to  foreign  ports  in  connection  with  certain  named 
steamship  lines. 

"The  rule  of  the  Commission  was  freely  commented  upon  in 
the  newspapers,  but  almost  without  exception  from  an  entirely 
erroneous  standpoint  and  a  total  misunderstanding  or  misconcep- 
tion as  to  what  the  rule  required.  No  opinion  was  expressed  by 
the  Commission  that  the  inland  portion  of  export  and  import 
rates  might  not  reasonably  and  properly  be  less  than  the  domes- 
tic rates  to  the  ports.  The  order  simply  required  the  carriers 
to  conform  to  the  plain  requirements  of  the  law  and  to  publish, 
in  the  manner  prescribed  by  law,  whatever  rates  they  saw  fit  to 
establish  on  this  traffic." 

§  180.  Same  Subject — Misquoting  Rates. — If  a  carrier 
makes  a  mistake  and  quotes  the  wrong  rate,  the  shipper  must 
nevertheless  pay  the  correct  tariff  rate,  even  though  he  suffer 
severe  loss  thereby,  and  for  this  loss  he  has  no  remedy. ^^^  In 
Poor  V.  Chicago,  B.  &  O.  R.  Co.,  12  I.  C.  C.  418,  421,  422,  ^Ir. 
Commissioner  Harlan  gives  the  reason  for  this  decision  as  fol- 
lows : 

"And  of  necessity  no  other  conclusion  was  possible  if  the  in- 
tegrity of  this  regulative  legislation  is  to  be  preserved.  If  a 
mistake  in  naming  a  rate  between  two  given  points  is  to  be  ac- 
cepted as  requiring  the  application  of  that  rate  by  the  carrier, 
the  great  principle  of  equality  in  rates,  to  secure  which  was  the 
very  purpose  and  object  of  the  enactment  of  these  several  stat- 
utes, might  as  well  be  abandoned.     If  the  act  of  a  railroad  clerk, 

"'Tex.  &  Pac.  Ry.  Co.  v.  Mugg.  mas,   43   S.   W.   609;    Chicago,   R. 

203  U.   S.  242,  50  L.   Ed.   1011,  26  I.    &   P.    Ry.     Co.   v.    Hubbell,   54 

Sup.   Ct.  628;   Gulf  C.   &  S.  F.  R.  Kans.  232,  38  Pac.  266,  5  I.  C.  R. 

Co.  V.  Hefley,  158  U.  S.  98,  39  L.  241;  Pond-Decker  Lumber  Co.  v. 

Ed.   910,   15     Sup.     Ct.   802;     Poor  Spencer,  86  Fed.  846,  30  C.  C.  A. 

Grain  Co.  v.  Chicago,  B.  &  Q.  R.  430;  Mobile  &  O.  R.  Co.  v.  Dis- 

Co.,  12  I.  C.  C.  418,  421,  422;  Suf-  mukes,   94  Ala.   131,  10  So.  289,  4 

fern.  Hunt   &   Co.  v.   Indiana,   D.  I.  C.  R.  200;  Atchison,  T.  &  S.  F. 

&  W.  Ry.  Co.,  7  I.  C.  C.  255,  278;  Ry.   Co.  v.  Holmes,  18  Okla.,  92, 

Houston   &  T.   C.   R.   Co.  v.  Du-  90  Pac.  22. 


§  180.]  Equality  in  Rates.  297 

whether  through  mistake  or  otherwise,  in  quoting  a  less  than  the 
lawful  rate  or  in  inserting  a  lower  rate  in  a  bill  of  lading  is  to 
be  held  to  require  or  to  justify  and  excuse  the  substitution  of 
that  rate,  on  a  particular  shipment,  for  the  lawfully  published 
rate,  the  efifectiveness  of  such  legislation  is  at  an  end  and  its 
whole  purpose  destroyed.  For  past  experience  shows  that  bill- 
ing clerks  and  other  agents  of  carriers  might  easily  become  ex- 
perts in  the  making  of  errors  and  mistakes  in  the  quotation  of 
rates  to  favored  shippers,  while  other  shippers,  less  fortunate 
in  their  relations  with  carriers  and  whose  traffic  is  less  important, 
would  be  compelled  to  pay  the  higher  published  rates. 

"Stability  and  equality  of  rates  are  more  important  to  com- 
mercial interests  than  reduced  rates.  It  was  instability  and  in- 
equality that  were  the  special  evils  to  be  remedied ;  it  was  the 
possibility  that  one  shipper,  in  one  way  or  another,  whether  by 
mistake  or  otherwise,  could,  and  actually  did,  get  a  lower  rate 
than  another  shipper  that  led  to  the  more  stringent  legislation. 
That  evil  the  present  amended  statute  meets  in  substantially  the 
language  of  previous  legislation." 

While  Air-  Commissioner  Harlan  was  undoubtedly  correct  in 
his  conclusion  as  the  law  then  stood,  the  ruling  was  one.  that 
frequently  worked  serious  injury  to  shippers.  On  this  subject 
the  commission,  in  its  twenty-second  annual  report,  pp.  16,  17, 
aptly  says : 

"The  act  to  regulate  commerce  requires  carriers  to  collect 
their  published  rates,  under  severe  penalty,  and  the  Supreme 
Court  of  the  United  States  has  held  that  this  must  be  done  even 
though  the  carrier  has  quoted  to  the  shipper  a  different  rate, 
in  good  faith,  upon  which  the  shipper  has  acted. 

"The  practical  hardship  of  this  rule  is  illustrated  by  the  last 
case  in  which  it  was  applied  by  that  court.  Texas  and  Pacific 
Railway  Company  v.  Mugg,  202  U.  S.  242,  50  L.  Ed.  1011,  26 
Sup.  Ct.  628.  Here  the  plaintiff  applied  for  a  rate  on  coal  from 
a  point  in  Arkansas  to  a  point  in  Texas  and  was  quoted  a  rate 
of  $1.25  upon  one  kind  and  $1.50  upon  another.  Upon  the 
strength  of  this  quotation  he  made  sale  of  three  carloads  for  a 
delivered  price  at  the  Texas  point.  In  fact,  the  published  rate 
was  $2.75  upon  one  kind  and  $2.85  upon  the  otlier,  and  the 
shipper  was  obliged  to  pay  upon  the  arrival  of  the  coal  in  Texas 
$140.18  more  than  would  have  been  due  under  the  rates  quoted. 
This  converted  the  transaction  from  a  profit  to  a  loss,  and  his 


298  Equality  in  Rates.  [§  181. 

suit  was  to  recover  damages  thus  occasioned.  The  court,  as  has 
been  said,  held  that  no  recovery  could  be  had. 

It  is  undoubtedly  true  that  shippers  ordinarily  do  not  know 
and  it  would  some  times  take  an  expert  to  find  out  what  a  par- 
ticular rate  is,  and,  therefore,  reliance  must  be  had  on  the  in- 
formation furnished  by  the  agents  of  the  carriers.  The  com- 
mission points  out  the  evil  but  suggests  no  remedy.  It  would 
probably  be  an  efl:'ective  remedy  to  allow  the  commission  to  award 
reparation  in  such  cases  as  it  might  find  were  based  upon  an  hon- 
est mistake  of  the  carrier.  The  commission  would  be  able  to 
prevent  the  evils  that  Mr.  Commissioner  Harlan  points  out;  and, 
if  necessary  to  prevent  discrimination,  the  rate  mistakenly  given 
might  be  open  to  all  who  ship  contemporaneously  with  the  ship- 
per who  relied  on  the  misquoted  rate. 

The  Act  of  1910  prescribing  a  penalty  for  misquoting  a  rate 
under  certain  prescribed  conditions  makes  it  illegal  to  misstate 
a  rate.  This  provision  taken  in  connection  with  Section  8  of 
the  act,  presents  a  situation  different  from  that  existing  prior  to 
this  amendment  and  now  when  the  amended  provision  is  violated 
it  is  believed  that  a  shipper  may  recover  his  damages. ^6- 

§  181.  Different  Rates  over  the  Same  Line  in  Opposite 
Directions. — In  the  case  of  Duncan  v.  Atchison,  T.  &  S.  F, 
Ry.  Co.,^*^^  the  Commission  said : 

"The  complainant  was  not  discriminated  against  in  being 
allowed  on  his  shipments  west,  to  Los  Angeles,  the  lowest  avail- 
able rate,  and  there  was  no  discrimination  against  him  on  his 
shipments  east  to  Louisville,  as  he  was  charged  the  general  rate 
exacted  of  all  shippers.  His  complaint  in  reference  to  the 
disparity  between  the  rates  charged  him  on  his  east  and  west 
bound  shipments,  respectively,  is  not  properly  one  of  unjust 
discrimination  under  the  third  section  of  the  act  to  regulate 
commerce,  but  rather  calls  in  question  the  reasonableness  of  the 
higher  rate.  The  claim  is  in  substance,  that  the  rate  of  $350 
eastward  is  unreasonable  in  view  of  the  fact  that  the  rate  over 
the  same  line  and  between  the  same  points  westward  is  only 
$263.  This  fact  alone  is  relied  upon  to  support  the  charge. 
The  two  rates  have  no  necessary  connection  or  relation,  and  the 

"'Sees.   368,   and   382,   post,   and  '"'Duncan  v.  Atchison,  T.  &  S. 

St.  Louis  S.  W.  Ry.  Co.  v.  Lew-  F.  R.  Co..  6  I.  C.  C.  85.  4  L  C. 
ellen  Bros.,  192  Fed.  540.  R.  385. 


§  181.]  Equality  in  Rates.  299 

fact  that  a  rate  over  a  road  or  line  in  one  direction  is  materially 
higher  than  the  rate  on  the  same  class  of  traffic  over  the  same 
road  or  line  and  between  the  same  points  in  the  opposite  direc- 
tion does  not,  as  in  the  case  of  hauls  over  the  same  line  in  the 
same  direction,  establish  prima  facie  the  unreasonableness  of  the 
higher  rate.  This  would  appear  to  be  especially  true  where 
the  hauls  are  of  as  great  length  as  those  now  under  considera- 
tion. It  is  moreover  in  evidence,  as  remarked  above,  that  the 
'west-bound  movement  of  the  traffic  termed  "emigrants'  move- 
ables" is  double  the  east-bound  movement,'  and  the  goods  shipped 
west  as  'emigrants'  moveables'  are  'materially  lower  in  value' 
than  those  shipped  east.  It  may  be  conceded  that  the  much 
greater  volume  of  the  traffic  moved  west  than  east  is  to 
some  extend  attributable  to  the  lower  rate  west,  but  the  tide  of 
emigration  is  naturally  from  a  comparatively  old  and  thickly 
populated  country  like  the  east  to  a  new  and  sparsely  settled 
country  like  the  west.  No  evidence  as  to  the  unreasonableness 
of  this  rate  in  itself  has  been  offered." 

This  ruling  has  been  repeated  several  times  by  the  Commis- 
sion. In  the  Duncan  case,  supra,  the  facts  of  the  case  showed 
a  much  heavier  movement  of  the  goods  transported  under  the 
shipment  there  in  controversy  towards  the  west  than  towards  the 
east.  This  fact  is  one  of  the  causes  that  afifects  rates  and  may 
always  be  considered.  The  amount  of  traffic  of  a  particular  kind 
that  moves  in  a  particular  direction  may  properly  constitute  a 
dififerent  circumstance  and  condition.  The  conclusion  of  the 
Commission  was  correct,  but  what  was  there  stated  should  not 
be  accepted  as  a  general  rule.  If  the  movement  both  ways  is  prac- 
tically equal  and  tnere  are  no  other  differentiating  circum- 
stances, the  fact  that  a  rate  over  a  road  or  line  in  one  direction 
is  materially  higher  than  the  rate  on  the  same  class  of  traffic 
over  the  same  road  or  line  and  between  the  same  points  in  the 
opposite  direction  does,  as  in  the  case  of  hauls  over  the  same 
line  in  the  same  direction,  establish  prima  facie  the  unreason- 
ableness of  the  higher  rate. 

The  facts  in  the  MacLoon  case  ^^^  while  stated  by  the  Com- 
mission to  be  practically  the  same  as  in  the  Duncan  case,  do 
not  so  clearly  support  the  holding  as  did  the  facts  in  the 
last    named     case.     There    was  no  evidence  as  to  the     relative 

""MacLoon  v.  Boston  &  M.  R.     Co.,  9  I.  C.  C.  642,  64.5. 


300  Equality  ix  Rates.  [§  182. 

amount  of  traffic  each  way  and  the  accommodations  seemed  to 
have  been  practically  the  same.  The  charge  was  greater  going 
west  than  going  east.  This  case  would  indicate  a  disposition 
on  the  part  of  the  Commission  to  make  it  a  general  rule  that 
there  is  no  relation  between  traffic  in  opposite  directions  over  the 
same  route.  In  a  later  case  ^^^  the  AlacLoon  case  is  cited  and 
followed.  It  will  be  conceded  that  circumstances  may  exist 
justifying  a  difference  in  rates  over  the  same  line  in  opposite 
directions;  but  in  the  absence  of  proof  of  such  circumstances, 
such  dift"erence  should  be  held  prima  facie  evidence  of  unjust 
discrimination. 1'^^ 

It  is  clear  that  rates  in  opposite  directions  over  the  same  line 
may  be  dift'erent ;  but  such  a  rate  relationship  requires  explana- 
tion.i®" 

§  182.  Discrimination  by  Granting  Free  Service. — Free 
tickets,  fares,  passes,  or  free  transportation  for  passengers  are 
prohibited,  with  certain  exceptions,  by  paragraph  four  of  section 
one  of  the  Act  to  Regulate  Commerce  as  amended  b\  the  Act  of 
April  13,  1908.^^^  The  provisions  requiring  the  tariff'  rates  to 
be  charged  and  collected  would  prevent  the  free  transportation 
of  property,  except  such  as  may  be  had  under  section  22  of  the 
Act,  which  section  provides :  "Nothing  in  this  act  shall  be  con- 
strued to  prevent  railroads  from  giving  free  carriage  to  their  of- 
ficials and  employees." 

The  purpose  and  history  of  these  provisions  of  the  law  are 
given  by  the  Commission  in  an  investigation  of  the  subject  of 
granting  passes  in  Colorado  and  Montana.  In  the  report  ot  this 
investigation  it  was  held  that  to  grant  an  interstate  shipper  an 
intrastate  pass  violates  the  Act  and  prosecutions  were  recom- 
mended. It  was  also  shown  that  a  free  pass  dissipates  revenues 
and  when  carriers  seek  rate  advances  this  fact  is  proper  to  be 
considered. ^*^^ 


"'Hewins  v.  New  York.   X.   H.  Gypsum   Co.  v.  O.  W.  R.   Co.,  30 

&  H.   R.   Co.,   10   I.   C.   C.  221,  224.  I.  C.   C.  135. 

'*"  Int.  Com.   Com.  v.  Louisville  '"'  Sec.   342,   post. 

&  N.  R.  Co.,  118  Fed.  613,  623.  ''"  Re     Issuance     and     Use     of 

'''Weil  V.  Pennsylvania  R.  Co..  Passes,  26  I.  C.  C.  491;  Re  Issu- 

11  I.  C.  C.  627,  629,  630;  Phillips  ance    and    Use    of    Passes — Mon- 

v.  Grand  Trunk  W.  R.   Co.,  11  I.  tana  Situation— 29  I.   C.   C.  411. 
C.   C.  659,  664,  665;   Pacific  Coast 


§  183.]  Equality  in  Rates.  301 

In  the  Motley  Case/'^**  the  Supreme  Court  had  for  determi 
nation   the   vaHdity   of   a   contract    for   transportation   made   by 
Mottley  in  consideration  of  the  settlement  of  his  claim  for  dam- 
ages.    The  contract,  though  made  prior  to  the  statute  prohibit- 
ing free  passes,  was  held  void,  the  court  saying: 

"The  passenger  has  no  right  to  buy  tickets  with  services,  ad- 
vertising, releases  or  property,  nor  can  the  railroad  company 
buy  services,  advertising,  releases  or  property  with  transporta- 
tion. The  statute  manifestly  means  that  the  purchase  of  a  trans- 
portation ticket  by  a  passenger  and  its  sale  by  the  company  shall 
be  consummated  only  by  the  former  paying  cash  and  by  the  lat- 
ter receiving  cash  of  the  amount  specified  in  the  published  tar- 
iffs." 

The  court  referred  in  the  opinion  to  the  ruling  by  the  Inter- 
state Commission,  conference  ruling  207,  which  ruling  is  as  fol- 
lows : 

207.  Payment  for  Transportation. — Nothing  but  money  can  be 
lawfully  received  or  accepted  in  payment  for  transportation  sub- 
ject to  the  act,  whether  of  passengers  or  property,  or  for  any 
service  in  connection  therewith,  it  being  the  opinion  of  the  Com- 
mission that  the  prohibition  against  charging  or  collecting  a 
greater  or  less  or  dififerent  compensation  than  the  established 
rates  or  fares  in  effect  at  the  time,  precludes  the  acceptance  of 
services,  property,  or  other  payment  in  lieu  of  the  amount  of 
money  specified  in  the  published  schedules. 

§  183.  Basing  Points,  Group  Rates  and  Zone  Rates. — 
In  discussing  the  reasonableness  of  rates  the  questions  of  basing 
the  rate  of  one  locality  on  that  of  another,  grouping  territory  and 
giving  the  whole  group  the  same  rate,  and  making  rates  to  or 
from  particular  zones  were  discussed. ^'^^  The  description  of 
these  systems  of  rate  making  there  given  need  not  be  here  re- 
peated. It  was  there  seen  that  discrimination  could  result  from 
such  practices,  and  it  is  obvious  that  either  of  the  systems  may 
be  so  applied  as  unduly  to  discriminate  for  or  against  a  particu- 
lar locality.  But  it  was  shown  that  the  systems  were  not  neces- 
sarily illegal,  the  illegality,  if  existing,  arising  from  the  applica- 
tion of  the  system. 

Generally  speaking,  competition  may  force  a  lower  rate  at  one 

"°  Louisville  &  N.  R.  Co.  v.  Ed.  297,  31  Sup.  Ct.  20.'),  34  L.  R. 
Mottley,  219  U.  S.  467,  477,  55  L.        A.   (N.  S.)  671. 

"'  Sec.   108,  supra. 


302  Equality  in  Rates.  [§  183. 

point  than  at  another.  What  competition  must  be  considered 
and  the  force  that  must  be  given  thereto  present  questions  having 
the  difficulties  which  accompany  the  determination  of  all  ques- 
tions relating  to  making  or  judging  rates.  Definite  water  com- 
petition is  a  fact  which  carriers  may  consider,  and  water  compe- 
tition at  one  point  which  forces  a  low  rate  thereat  may  be  met 
by  a  carrier  without  being  compelled  to  accord  the  same  low 
rate  to  another  point  where  no  such  competition  exists. i"-  But, 
"every  city  is  entitled  to  the  advantage  of  its  location  and  may 
not  lawfully  be  subjected  to  high  freight  charges  merely  because 
carriers,  for  reasons  of  convenience  or  otherwise,  include  it  witn 
a  number  of  other  points  in  surrounding  territory  which  latter 
points  are  not  similarly  situated. "^'-^  Carriers  can  not  of  their 
own  initiative,  nor  can  they  be  compelled,  "to  equalize  natural 
advantages. "^'''^ 

In  speaking  of  group  rates,  the  Commission  said: 
"When  general  rate  adjustments  in  and  between  large  terri- 
tories, which  contemplate  substantial  justice  between  all  ship- 
pers generally,  result  in  individual  instances  of  disproportionate 
inequality,  they  fail  in  their  purpose  to  that  extent,  and  their 
strict  observance  in  such  cases  upon  no  other  ground  than  the 
arbitrary  theory  of  their  existence,  should  yield  to  the  extent 
necessary  to  prevent  gross  injustice,  just  as  many  other  gen- 
eral rules  are  necessarily  subject  to  exceptions."^" ^ 

The  report  of  the  Commission  in  the  Carrollton  Board  of 
Trade  case,^^*''  discusses  the  general  subject  and  holds  that  dis- 
tance is  a  fact  requiring  consideration. 


"'Int.    Com.    Com.    v.   Alabama  Baltimore   &  O.  R.   Co.,  22   I.   C. 

M.   Ry.   Co.,   168  U.   S.   144.  42   L.  C.   84.   88. 

Ed.  414,  18  Sup.  Ct.  45;  Int.  Com.  '"Alpha    Portland    Cement    Co. 

Com.  V.   Louisville   &  N.   R.   Co..  v.   Baltimore   &  O.   R.   Co.,  22   I. 

190  U.  S.  273,  47  L.   Ed.  1047.  23  C.    C.    446,    449;    Kaufman    Com- 

Sup.   Ct.   687;   Int.    Com.   Com.  v.  mercial    Club   v.   T.    &   N.    O.    R. 

Western  &  A.  Ry.  Co.,  181  U.  S.  Co.,   31    I.    C.    C.   167;    CoflFeyville 

29,  45  L.  Ed.  729,  21  Sup.  Ct.  512;  Commercial    Club   v.   A.   T.    &   S. 

Columbia   Grocery   Co.   v.   Louis-  F.   R.   Co.,  33   I.   C.   C'  122,  34  I. 

ville  &  N.  R.  Co.,  18  I.  C.  C.  502.  C.   C.   231. 

"'  Corporation  Com.  of  North  "'  Board  of  Trade  of  Carroll- 
Carolina  V.  Norfolk  &  W.  Ry.  ton  v.  Central  of  Ga.  Ry.  Co.,  2S 
Co.,   19   I.   C.   C.  303,  307.  I.    C.    C.    154. 

''*  Elk   Cement    &   Lime    Co.   v. 


§  184.]  Equality  in  Rates.  303 

§  184.  How  Far  a  Rate  Made  by  a  State  Relieves  a  Car- 
rier from  the  Duty  to  Serve  Communities  with  Legal 
Equality. — That  discrimination  which  the  statute  prohibits,  may 
result  from  the  fact  that  state  made  rates  applying  within  a  par- 
ticular state  are  lower  than  interstate  rates  applicable  to  inter- 
state shipments  which  are  made  to  compete  with  like  shipments 
moving  under  intrastate  rates.  If  Congress  has  no  power  to 
prohibit  discrimination  when  one  class  of  the  discriminatory 
rates  is  made  by  a  state,  there  could  be  the  most  injurious 
discrimination  for  wdiich  no  remedy  would  exist.  This  and  sim- 
ilar arguments  influenced  the  Commission  in  the  Shreveport  case 
to  direct  the  carriers  there  defendant  to  remove  an  unlawful  dis- 
crimination resulting  from  rates  prescribed  by  the  Railroad 
Commission  of  Texas.  Such  an  order  the  courts  held  was 
valid,  i-'f 

§  185.  Commutation,  Mileage  and  Party  Rate  Tickets. — 
Section  22  of  the  act  provides :  "Nothing  in  this  act  shall  prevent 
*  *  *  the  issuance  of  mileage,  excursion  or  commutation 
tickets."  The  right,  however,  to  issue  these  special  contracts  for 
passenger  travel  is  subject  to  the  provisions  of  other  sections  of 
the  act  requiring  that  all  in  similar  situation  shall  be  accorded 
like  treatment.  Commutation  tickets  must  not  be  accorded  to 
some  and  denied  to  other  similarly  situated. ^"^ 

A  dictum  of  Mr.  Justice  Holmes  supports  the  conclusion  that 
commutation  tickets  might  be  limited  in  their  use  to  school  chil- 
dren, while  the  opinion  of  the  Commission  seems  to  favor  the  op- 
posite view.^'''^  While  the  c|uestion  is  not  free  from  doubt,  the 
public  purpose  served,  and  the  absence  of  damage  to  any  one 
tends  to  justify  a  classification  of  school  children  for  the  pur- 
pose of  conceding  to  them  special  commutation  fares. 

"'Houston,  E.  &  W.  Ry.  Co.  v.  Re   Restricted   Rates,  20  I.   C.   C. 

United     States-Shreveport     case,  426;   Commutation  Rate  Case,  21 

234  U.   S.  342,  58   L.   Ed.   1341,  34  I.   C.   C.  428;  Bitzer  v.  W.-V.  Ry. 

Sup.    Ct.    833,   affirming   Texas    &  Co.,  24  I.   C.   C.  225. 
P.    R.    Co.   V.   United    States,    205  ''"  Interstate  Ry.  Co.  v.  Massa- 

Fed.    380,    and    the    order    of    the  chusetts.   207  U.   S.  79,  2   L.    Ed. 

Commission  in  Railroad  Com.  of  Til.    2S    Sup.     Ct.     26;     affirming 

La.   V.   St.   L.   S.   W.   Ry.    Co.,   23  Commonwealth  v.   Interstate  Ry. 

I.    C.    C.    31.      See    also    Sec.    44,  Co.,  187  Mass.  436,  73  N.  E.  530; 

supra  Commutation    Tickets    to    School 

"'Commutation        Tickets        to  Children,    17    I.    C.    C.   144. 
School   Children,   17   I.   C.   C.   144; 


304  Equality  in  Rates.  [§  186. 

It  is  not  an  unjust  discrimination  to  give  lower  rates  for  eacii 
individual  when  several  travel  on  one  ticket  than  is  accorded 
each  individual  travehng  alone. ^^'^ 

§  186.  Rebates. — A  rebate  within  the  meaning  of  the  act  to 
regulate  commerce  means  the  acceptance  by  a  common  carrier 
of  a  rate  less  than  that  provided  for  in  its  tariffs  of  charges. 
The  most  frequent  method  of  rebating  was  for  the  carrier  to 
exact  the  full  tariff  charge  and  afterwards  "rebate"  or  pay  to 
the  shipper  a  portion  thereof.  This  rebate  was  sometimes  af- 
fected under  the  guise  of  a  claim  for  damages  by  the  shipper. 
In  whatever  form,  whether  openly  or  by  the  most  ingenious  and 
complicated  device,  all  rebates  are  illegal  and  punishable  under 
the  Elkins  law.  The  desire  to  obtain  equality  to  shippers  and 
to  prevent  favoritism  was  probably  the  strongest  reason  for  the 
enactment  of  the  act  to  regulate  commerce.  By  the  unjust  and 
preferential  payment  of  rebates  the  incomes  of  carriers  were  re- 
duced and  the  unfortunate  shipper  who  received  no  rebates  had 
his  business  destroyed,  while  his  more  favored  competitor  thrived. 
The  views  of  the  Supreme  Court,  through  Mr.  Justice  White, 
in  New  York,  N.  H.  &  H.  R.  Co.  7'.  Interstate  Commerce  Com- 
mission, 200  U.  S.  361,  391,  50  L.  Ed.  515,  521,  26  Sup.  Ct.  Rep. 
272,  277,^^1  are  apposite  here : 

"It  can  not  be  challenged  that  the  great  purpose  of  the  act 
to  regulate  commerce,  whilst  seeking  to  prevent  unjust  and  un- 
reasonable rates,  was  to  secure  equality  of  rates  to  all  and  to 
destroy  favoritism,  these  last  being  accomplished  by  requiring 
the  publication  of  tariff's  and  by  prohibiting  secret  departures 
from  such  tariff's,  and  forbidding  rebates,  preferences,  and  all 
other  forms  of  undue  discrimination.  To  this  extent  and  for 
these  purposes  the  statute  was  remedial,  and  is,  therefore,  en- 
titled to  receive  that  interpretation  which  reasonably  accom- 
plishes the  great  public  purpose  which  it  was  enacted  to  sub- 
serve *  *  *  The  all-embracing  prohibition  against  either  di- 
rectly or  indirectly  charging  less  than  the  published  rates  shows 
that  the  purpose  of  the  statute  was  to  make  the  prohibition  appli- 
cable to  every  method  of  dealing  by  a  carrier  by  which  the  forbid- 
den result  could  be  brought  alDout.     If  the  public  purpose  whicii 

'^Int.    Com.    Com.   v.   B.    &   O.  '''New   York,    N.   H.    &   H.    R. 

R.    Co.,   145  U.   S.   263,   36   L.   Ed.       Co.  7-.  Interstate  Com.   Com..  200 
699,  12  Sup.   Ct.  844,  4  I.  C.  R.  92.        U.   S.  361.  391.  50  L.   Ed.   515.  521, 

26    Sup.    Ct.    Rep.   272,    277. 


§  186.]  Equality  in  Rates.  305 

the  statute  was  intended  to  accomplish  be  borne  in  mind,  its 
meaning  becomes,  if  possible,  clearer." 

Mr.  Justice  Day,  after  quoting  the  above  remarks  in  the  Ar- 
mour Packing  Co.  case,^*-  said  : 

"The  Elkins  act  proceeded  upon  broad  lines  and  was  evidently 
intended  to  effectuate  the  purpose  of  Congress  to  require  that 
all  shippers  should  be  treated  alike,  and  that  the  only  rate 
charged  to  any  shipper  for  the  same  service,  under  the  same 
conditions,  should  be  the  one  established,  published,  and  posted 
as  required  by  law^  It  is  not  so  much  the  particular  form  by 
which  or  the  motive  for  wdiich  this  purpose  was  accomplished, 
but  the  intention  was  to  prohibit  any  and  all  means  that  might 
be  resorted  to  to  obtain  or  receive  concessions  and  rebates  from 
the  fixed  rates,  duly  posted  and  published." 

Emphasis  was  given  to  these  principles  by  the  Supreme  Court 
in  holding  that  land  can  not  be  purchased  and  paid  for  by  con- 
ceding to  the  grantor  a  rebate  although  the  amount  of  the  rebate 
is  less  than  the  value  of  the  land.  Said  Mr.  Justice  Lamar  in  the 
opinion  of  the  court :  "The  commerce  act  prohibits  the  payment 
of  rebates,  and  its  command  can  not  be  evaded  by  calling  them 
differentials  or  concessions,  nor  by  taking  the  money  from  the 
railroad  itself  or  from  a  company  that  is  proved  to  be  the  same 
as  the  railroad. ^^^ 

The  law  applies  to  demurrage  charges, ^^^  and  each  distinct  ship- 
ment, transportation  or  transaction  constitutes  a  separate  of- 
fense.i^^ 

The  venue  of  suits  in  prosecutions  for  granting  rebates  is  in 

"^Armour       Packing      Co.      v.  versing    Fouche    Lumber    Co.    v. 

United    States,    209    U.    S.    56,    52  Bryant  Lumber  Co.,  97  Ark.  623, 

L.    Ed.    681,    28    Sup.    Ct.    428.  135    S.  W.  796. 

"'' Fouche  River  Lumber  Co.  v.  ^'^  Lehigh     Valley     R.     Co.     v. 

Bryant  Lumber  Co.,  230  U.  S.  816,  United    States,    188    Fed.    879,    af- 

57   L.   Ed.   1498.   33   Sup.   Ct.   887,  firming  United  States  v.  Philadel- 

citing  Louisville   &  N.   R.   Co.  v.  phia  &  R.  Co.,  184  Fed.  543,  and 

Mottley,  219  U.  S.  467,  55  L.  Ed.  United    States    v.    Lehigh    Valley 

397,  31    Sup.   Ct.  265,   34   L.   R.   A.  R.    Co.,    184   Fed.   546. 

(N.  S.)  671;  United  States  v.  Le-  "=*  United     States     v.     Standard 

high  Valley  R.  Co.,  220  U.  S.  257,  Oil  Co.,  192  Fed.  438;  New  York 

55   L.    Ed.   458,   31   Sup.   Ct.   387;  C.    &    H.    R.    R.    Co.    v.    United 

United     States     v.    Union     Stock  States,   212  U.   S.   481,   53   L.    Ed. 

Yards    Co.,   226   U.    S.   286,   57    L.  613,   29    Sup.    Ct.   304. 
Ed.   226,   33    Sup.   Ct.    83,   and   re- 


306  Equality  in  Rates.  [§  187. 

any  federal  district  through  which  moves  the  transportation  on 
which  the  rebate  is  paid.^'^" 

When  no  joint  tariff  is  filed,  the  sum  of  the  local  rates  is  the 
valid  through  rate,  and  a  carrier  who  issues  a  through  bill  of 
lading  and  collects  less  than  such  rate  is  guilty  of  rebating-^^"^ 

§  187.  Same  Subject — Corporation  Punishable. — In  New 
York  C.  &  H.  R.  R.  Co.  v.  United  States,is«  it  was  contended 
that  the  law  could  not  impute  to  a  corporation  the  Commission 
of  a  crime  and  that  the  conviction  of  a  corporate  common  car- 
rier for  rebating  was  illegal.  This  c^uestion  is  discussed  at 
length,  authorities  cited  and  this  conclusion  arrived  at : 

"We  see  no  valid  objection  in  law,  and  every  reason  in  public 
policy,  why  the  corporation  which  profits  by  the  transaction, 
and  can  only  act  through  its  agents  and  officers,  shall  be  punish- 
able by  fine  because  of  the  knowledge  and  intent  of  its  agents 
to  whom  it  has  intrusted  authority  to  act  in  the  subject-matter 
of  making  and  fixing  rates  of  transportation,  and  whose  knowl- 
edge and  purposes  may  well  be  attributed  to  the  corporation 
for  which  the  agent  acts.  While  the  law  should  have  regard  to 
the  rights  of  all,  and  to  those  of  corporations  no  less  thaii  to 
those  of  individuals,  it  can  not  shut  its  eyes  to  the  fact  that  the 
great  majority  of  business  transactions  in  modern  times  are  con- 
ducted through  these  bodies,  and  particularly  that  interstate 
commerce  is  almost  entirely  in  their  hands,  and  to  give  them  im- 
munity from  all  punishment  because  of  the  old  and  exploded 
doctrine  that  a  corporation  can  not  commit  a  crime  would  vir- 
tually take  away  the  only  means  of  effectually  controlling  the 
subject-matter  and  correcting  the  abuses  aimed  at. 

"There  can  be  no  question  of  the  power  of  Congress  to  reg- 
ulate interstate  commerce,  to  prevent  favoritism  and  to  secure 
equal  rights  to  all  engaged  in  interstate  trade.  It  would  be  a 
distinct  step  backward  to  hold  that  Congress  can  not  control 
those  who  are  conducting  this  interstate  commerce  by  holding 
them  responsible  for  the  intent  and  purposes  of  the  agents  to 
whom  they  have  delegated  the  power  to  act  in  the  premises." 

This  section  and  the  one  preceding  it  are  limited  to  the  ques- 

"'  See     note      185,     supra,     this  698.  28  Sup.   Ct.  439. 
chapter.  '"^  New  York  C.  &  H.  R.  R.  Co. 

"'Chicago,    B.    &   Q.   R.    Co.  v.  v.   United    States,   212  U.    S.   481, 

United  States,  157  Fed.  830.     Af-  53   L.   Ed.   613,  29   Sup.   Ct.   304. 
firmed,    209    U.    S.    90,    52    L.    Ed. 


§  188.]     •  Equality  in  Rates.  307 

tion  of  discrimination  as  the  result  of  rebates.  The  procedure 
for  determining  and  punishing  rebating  will  be  more  fully  dis- 
cussed in  a  subsequent  chapter. i^^ 

§  188.  Summary. — Obviously  many  of  the  facts  which  must 
be  considered  in  determining  whether  a  particular  rate  is  rea- 
sonable or  unreasonable  must  also  be  considered  in  determining 
whether  or  not  a  particular  rate  is  unjustly  discriminatory  or  un- 
duly preferential.  Some,  therefore,  of  the  principles  discussed 
in  section  131  sitpra  are  applicable  here. 

A  common  carrier  performs  a  public  function;  the  Govern- 
ment permits  the  carrier  to  do  what  the  Government  itself  could 
do.  The  charges  exacted  by  the  carrier  are  analogous  to  taxa- 
tion. The  Government  taxes,  that  it  may  perform  its  govern- 
mental duties.  The  Government,  it  is  true,  exacts  no  profit  for 
the  service  rendered,  the  common  carrier  using  private  capital 
is  permitted  to  receive,  in  addition  to  the  actual  cost  of  the  serv- 
ice it  performs,  a  fair  return  on  the  capital  necessarily  used  to 
enable  it  to  perform  such  service.  The  Government  itself  would, 
were  it  to  undertake  to  perform  the  service  directly,  have  to  ob- 
tain capital  to  supply  the  necessary  facilities.  The  Government 
could  furnish  the  service  free  to  all,  obtaining  the  cost  thereof 
from  general  taxation,  or  it  could  as  with  the  mails  make  all 
who  use  the  service  pay  therefor. 

This  analogy  between  taxation  and  charges  by  common  car- 
riers is  sufficient  to  require  that  the  rule  of  uniformity  applicable 
to  taxation  should  be  observed  in  fixing  the  charges  which  the 
common  carrier  may  exact. 

But  uniformity  does  not  mean  that  every  charge  must  be  the 
same.  -It  means  no  more  than  that  under  the  same  or  similar 
circumstances  the  charge  exacted  shall  be  guaged  alike. 

There  are  different  kinds  of  taxes,  but  there  must  be  uniform- 
ity in  the  tax  on  the  same  or  a  similar  subject-matter. 

To  get  just  uniformity,  either  in  taxation  or  in  charges  by 
public  service  corporations,  there  must  be  classification ;  classi- 
fication as  to  the  service  rendered  considering  the  cost  and  ex- 
tent thereof,  and  classification  as  to  the  value  the  service  is  to 
him  for  whom  it  is  performed. 

It  has  been  the  aim  of  the  author  of  this  chapter  to  present 
the  principles  which  have  been  applied  in  making  this  classifica- 

'"  Sec.   37i,  post. 


308  Equauty  in  Rates.  [§  189. 

tion  of  commodities  and  of  rates.  That  these  principles  must 
yield  sometimes  is  true.  That  the  known  facts  are  not  suffi- 
ciently comprehensive  to  justify  definite  generalizations  and  a 
fixed  standard  to  be  applied  to  the  question,  must  be  admitted. 
But  the  general  rules  which  have  been  empirically  deduced  jus- 
tify the  statement  of  the  Commission  that  "it  is  not  fanciful  to 
say  that  a  schedule  of  rates  may  be  made  which  will  approach 
justice  as  between  services." 


CHAPTER  V. 

Enforcement  by  the  Commission  oe  the  Act  to  Regulate 

Commerce. 

§  189.  General   Statement  of  the   Functions   of   the   Interstate    Com- 
merce  Commission. 

190.  Appointment   and    General    Duties    of   the    Commission. 

191.  Switch   Connections.     Duty  of  Carriers. 

192.  Switch   Connections.     Powers  of  the   Commission. 

193.  Industrial    Switches   and    Railways. 

194.  Switch   Connections  with   Carriers  by  Water. 

195.  Through   Routes. 

196.  Division    of   Joint    Rates. 

197.  Allowances  to   Shippers   for   Services  and   Facilities. 

198.  Distribution   of  Cars. 

199.  Long  and  Short  Haul  Provisions,  History  of. 

200.  Relationship   of   Intermediate   and   Through    Rates. 

201.  Water    Competition. 

202.  Power  of  the  Commission  under  the  Fourth  Section. 

203.  Ownership  of  Water   Carriers  by   Railroads. 

204.  The    Commission's    Duties    with    Reference    to    Schedules    of 

Rates. 

205.  Damages. 

206.  Damages — Power  of  the   Commission  to   Make  Award   of. 

207.  Awards  of  Damages  for  Charging  an  Unjust  and  Unreason- 

able   Rate. 

208.  Awards   of  Damages   for  Unlawful   Discrimination. 

209.  Damages   under   the   Fourth   Section. 

210.  Damages   for   Misrouting. 

211.  Damages — General    Statement. 

212.  Damages  for  Misquoting  a  Rate. 

213.  Damages,   to   Whom   Paid. 

214.  Damages,    by   Whom    Paid. 

215.  Damages — Protest   Unnecessary. 

216.  Damages — Interest    and    Attorney's    Fees. 

217.  Award   of  Damages  an   Inadequate   Remedy. 

218.  Damages,    Limitation    on    Complaint    for. 

219.  General    Investigation    by    the    Commission. 

220.  Same   Subject.     Amendment  of  1910. 

221.  Commission  May  Ask  the  Aid  of  the  Courts  to  Enforce  the 

Law. 

222.  Commission  Has  Power  to  Prescribe  Rates  for  the  Future. 

223.  Suspension   of  Rates,  Regulations  and  Practice. 

224.  Through   Routes  and  Joint  Rates. 

225.  Allowance    for   Services   or   Instrumentalities. 

309 


310  Enforcement  by  the  Commission  [§  189. 

226.  Powers  Enumerated,  Not  Exclude  Others. 

227.  Effect    of    Commission's    Orders. 

228.  Commission's    Control    Over    Its    Orders. 

229.  Commission    May   Employ   Attorneys. 

230.  Records  of  Commission. 

231.  Valuation  of  Railroad  Property. 

232.  Valuation,   How   Made. 

233.  Finality   and    Effect   of   Valuation. 

234.  Office    of    Commission. 

235.  Annual  Reports  from  Carriers. 

236.  Examiners. 

237.  Reports  by  the  Commission. 

238.  Lake  Erie  and  Ohio  River  Ship  Canal. 

239.  Parcel   Post. 

240.  Government  Aided  Railroads  and  Telegraph  Companies. 

241.  Common  Law  Remedies. 

§  189.  General  Statement  of  the  Functions  of  the  Com- 
mission.— In  discussing  the  scope  and  validity  of  the  act  to  reg- 
ulate commerce  infra  chapter  two,  it  was  seen  that  the  Interstate 
Commerce  Commission  was  an  administrative  body,  with  no  ju- 
dicial power,  that  it  is  an  agency  of  the  legislative  department  of 
the  Federal  Government  to  which  has  been  delegated  the  legisla- 
tive power  of  prescribing  rates  for  the  future.  In  the  perform- 
ance of  its  administrative  duties,  it  exercisfes  certain  functions  in 
the  exercise  of  which  it  adopts  forms  and  procedure  similar  to 
those  in  use  by  courts  when  enforcing  the  judicial  powers  of  the 
government.  While  in  a  loose  way  it  is  frequently  said  that  the 
Commission  exercises  quasi  judicial  powers,  it  can  not  be  said  that 
any  of  the  judicial  powers  conferred  by  the  Constitution  of  the 
United  States  are,  or  can  be,  exercised  by  the  Commission.  Its 
duties  under  existing  law  naturally  divide  themselves  into  two 
distinct  branches.  The  first  of  these  are  purely  administrative  in 
their  nature.  The  second  is  the  exercise  of  its  delegated  legisla- 
tive power  and  consists  of  prescribing  rules,  regulations  and  rates 
for  the  future.  Under  the  first  head,  upon  complaint,  the  Com- 
mission, after  hearing,  may  decide  that  the  past  practice  of  a  car- 
rier has  not  been  in  accord  with  the  law,  it  may  determine  that  by 
such  practices  the  complainant  has  been  damaged  in  an  amount 
which  the  Commission  fixes.  Its  findings  awarding  reparation  may 
or  may  not,  at  the  option  of  the  carrier,  be  obeyed.  If  the  order 
therefor  is  obeyed,  it  is  not  that  the  carrier  can  be  compelled  to 
do  so  by  any  order  of  the  Commission,  but  because  the  carrier 


§  190.]  OF  THE  Act  to  Regulate  Commerce.  311. 

recognizes  the  justice  thereof  or  fears  that  the  courts  may  do  so. 
If  obedience  is  refused,  the  Commission,  or  the  parties  in  whose 
favor  the  order  is  granted,  may  ask  the  judicial  department  of 
the  government  to  lend  its  aid  to  make  effective  the  findings  of 
the  Commission.  When  the  matter  is  brought  to  the  attention 
of  the  proper  court  in  such  a  way  as  to  invoke  its  action,  a  hear- 
ing is  had  de  novo,  the  findings  of  the  Commission  being,  by  a 
rule  of  evidence  prescribed  by  the  legislative  department,  prima 
facie  true.  Exercising  its  full  and  unlimited  judicial  power,  the 
court  may  give  weight  to  the  findings  of  the  Commission  like 
it  might  to  any  other  administrative  body ;  but  the  power  to  en- 
force the  order  is  wholly  in  the  courts. 

The  Commission  prescribes  forms  of  accounting  which  the 
carriers  must  obey,  prescribes  the  forms  of  tariffs  and  methods 
of  publishing  same,  and  makes  conference  rulings  applicable  to 
the  general  enforcement  of  the  Act. 

By  the  Amendment  of  March  1,  1913,  the  Commission  is  di- 
rected to  investigate,  ascertain  and  report  the  value  of  all  the 
property  owned  or  used  by  every  common  carrier  subject  to  the 
provisfons  of  the  commerce  acts. 

§  190.  Appointment  and  General  Duties  of  the  Commis- 
sion.— The  Interstate  Commerce  Commission  is  composed  of 
seven  members,  whose  terms  of  office  is  seven  years  each,  and 
each  of  whom  receives  an  annual  salary  of  ten  thousand  dollars. 
They  are  appointed  by  the  president  by  and  with  the  advice  and 
consent  of  the  Senate.  Nor  more  than  four  of  the  commissioners 
may  be  of  the  same  political  party,  and  they  may  be  removed 
by  the  President  for  inefficiency,  neglect  of  duty,  or  malfeasance 
in  office-  They  shall  not  engage  in  any  other  business,  vocation, 
or  employment.  The  principal  office  of  the  Commission  shall  be 
in  Washington,  where  its  general  sessions  shall  be  held ;  but 
whenever  the  convenience  of  the  public  or  the  parties  may  be  pro- 
moted, or  delay  or  expense  prevented  thereby,  the  Commission 
may  hold  special  sessions  in  any  part  of  the  United  States.  It 
may,  by  one  or  more  of  the  commissioners,  prosecute  any  in- 
quiry necessary  to  its  duties,  in  any  part  of  the  United  States, 
into  any  matter  or  question  of  fact  pertaining  to  the  business 
of  any  common  carrier  subject  to  the  provisions  of  the  act.  It 
shall  inquire  into  the  management  of  the  business  of  all  common 
carriers  subject  to  the  act,  and  is  authorized  and  required  to 
enforce   such   act.      It   has   power  to   require,   by   subpoena,   the 


312  Enforcement  by  the  Commission  [§  191. 

attendance  of  witnesses  and  the  production  of  books  and  it  may 
order  testimony  taken  by  depositions.  Every  order  of  the  com- 
mission shall  be  forthwith  served  by  mailing  to  any  one  of  the 
principal  officers  or  agents  of  the  carrier  at  his  usual  place  of 
business  a  copy  thereof ;  and  the  registry  mail  receipt  shall  be 
prima  facie  evidence  of  the  receipt  of  such  order  by  the  carrier. 
It  may  suspend  or  modify  its  orders  and  grant  rehearings.  It 
has  power  to  require  reports  from  carriers  subject  to  the  act  and 
to  prescribe  forms  for  accounting  by  carriers.  It  must  itself 
make  annual  reports  to  Congress. 

§  191.  Switch  Connections — Duty  of  Carrier. — It  is  the 
duty  of  any  common  carrier  subject  to  the  provisions  of  the  Act 
to  Regulate  Commerce,  upon  application  of  any  lateral,  branch 
line  of  railroad,  or  of  any  shipper  tendering  interstate  traffic  for 
transportation,  to  construct,  maintain,  and  operate  upon  reason- 
able terms  a  switch  connection  with  any  such  lateral,  branch  line 
of  railroad,  or  private  side  track  which  may  be  constructed  to 
connect  with  its  railroad,  and  where  such  connection  is  reason- 
ably practicable  and  can  be  put  in  with  safety  and  will  furnish 
sufficient  business  to  justify  the  construction  and  maintenance  of 
the  same,  and  to  furnish  cars  for  the  movement  of  such  traffic  to 
the  best  of  its  ability  without  discrimination  in  favor  of  or 
against  any  such  shipper. ^ 

Under  section  one  of  the  Act  of  March  4,  1887,  as  amended 
by  the  Act  of  June  29,  1906,  the  Supreme  Court  held  that  the 
Interstate  Commerce  Commission  had  power  to  compel  switch 
connections  with  lateral  branch  roads  only  at  the  instance  of 
shippers  and  that  it  had  no  power  to  compel  switch  connections 
on  the  application  of  a  branch  railroad.^ 

The  amendment  of  June  18,  1910,  however,  gives  the  right 
to  "any  lateral,  branch  line  of  railroad,"  as  well  as  to  any  shipper. 

In  construing  the  words  "lateral  branch  line,"  the  Supreme 
Court  gave  as  examples  of  such  lines,  "those  that  are  dependent 
rpon  and  incident  to  the  main  line — feeders,  such  as  may  be 
built  from  mines  or  forests  to  bring  coal,  ore  or  lumber  to  the 
main  line   for  shipment,"  and  the  court  held  that  the  question 

^  First  part,  last  par.   Sec.   1,  of  "  Interstate  Com.  Com.  r.  Dela- 

Act    to    Regulate    Commerce,    as  ware,    L.    &   W.    R.    Co.,    216    U. 

amended    by    act    June    18,    1910,  S.  531,  54  L.   Ed.  605,  30  Sup.  Ct. 

Chap.     309,     Sec.     7,   36      Stat,    at  415. 
Large    539,    547,    Sec.    338,   post. 


§  192.]  OF  THE  Act  to  Regulate  Commerce.  313 

of  whether  or  not  a  particular  line  comes  within  the  meaning  of 
the  statutory  language  must  be  determined  by  what  the  line  is, 
and  not  by  what  it  may  become/'^ 

§  192.  Switch  Connections — Powers  of  the  Commission. 
— Should  a  carrier  fail  to  perform  the  duty  to  make  switch  con- 
nections, on  application  therefor  in  writing  by  any  shipper  or 
owner  of  such  lateral,  branch  line  of  railroad,  such  shipper  or 
owner  of  such  lateral,  branch  line  of  railroad,  may  make  com- 
plaint, and  the  Commission  shall  hear  and  investigate  the  same 
and  shall  determine  as  to  the  safety  and  practicability  thereof 
.  and  the  justification  and  the  reasonable  compensation  therefor, 
and  the  Commission  may  make  an  order  directing  the  common 
carrier  to  comply  with  the  provisions  of  the  statute  in  accord- 
ance with  such  order.^ 

This  provision  is  limited  by  section  three  of  the  Act  to  Reg- 
ulate Commerce  which  provides  that  no  railroad  shall  be  re- 
quired to  give  the  use  of  its  tracks  or  terminal  facilities  to  an- 
other carrier  engaged  in  like  business.^ 

When  there  is  an  application  for  a  switch  connection  made  as 
provided  by  statute  and  the  evidence  shows  an  existing  siding 
from  which  interstate  freight  is  tendered,  that  there  is  sufficient 
business  to  justify  the  construction  and  maintenance  of  the 
switch  and  the  connection  is  reasonably  practicable  and  safe,  the 
Commission  will  order  a  connection.** 

There  must,  however,  be  an  existing  side  track  or  lateral 
branch  line  of  railroad  with  which  the  connection  can  be  made," 
and  the  Commission  has  no  jurisdiction  to  enforce  a  contract 
for  such  connection.^ 

"United   States  v.   Baltimore   &  *  Last  part  of  last  par.     Sec.  1, 

O.    R.    Co.,    226   U.    S.    14,    57    L.  note   1,  supra;   Sec.   338,  post. 

Ed.   104,  33   Sup.   Ct.   5,  affirming  "Morris   Iron   Co.  v.  Baltimore 

Baltimore  &  O.  R.  Co.  v.  United  &    O.    R.    Co.,    26    I.    C.    C.    240, 

States,    195    Fed.     962,     Opinion  243,   244;   Sec.   347,  post. 

Commerce   Court  No.   60,   p.  431.  "  Ridgewood    Coal    Co.    v.    Le- 

For     order    of    the     Commission  high   Valley   R.    Co.,   21    I.    C.    C. 

see,  Cincinnati  &  Columbus  Trac-  183.   185. 

tion    Co.    V.    Baltimore    &    O.    R.  'Winters  Metallic  Paint  Co.  v. 

Co.,  20   I.   C.    C.  486.      Following  Chicago,  M.  &  St.  P.  Ry.  Co.,  16 

the  Supreme  Court  see,  St.  Louis,  L   C.    C.   687. 

S.  &  P.  R.  Co.  V.  Peoria  &  P.  U.  'Ralston  Townsite  Co.  v.  Mis- 

Ry.   Co.,  26   L   C.   C.  226;   Morris  sour!    Pac.    Ry.    Co.,    22    L    C.    C. 

Iron    Co.   V.    Baltimore    &    O.    R.  354. 
Co.,    26    I.    C.    C.    240. 


314  Enforce:ment  by  the  Commission  [§  193. 

The  prohibition  against  requiring  a  carrier  to  give  the  use  of 
its  tracks,  terminals  and  faciHties  to  a  competing  carrier,  does 
not  prevent  the  Commission  in  a  proper  case  from  requiring  a 
carrier  to  receive  cars  from  a  connection  for  transportation  over 
its  tracks  and  terminals.  Such  a  requirement  when  the  haul  is 
"a  substantial  part  of  a  continuous  transportation  routing"  and 
necessary  to  such  movement,  is  a  proper  regulation  of  the  busi- 
ness of  the  carrier  and  not  an  appropriation  of  terminal  facili- 
ties for  the  use  and  benefit  of  another  road.'^  For  the  transporta- 
tion over  its  tracks  the  carrier  performing  the  service  is  en- 
titled to  a  reasonable  compensation.^*^ 

§  193.  Industrial  Switches  and  Railways. — The  jurisdic- 
tion of  the  Commission  to  require  switch  connections  includes 
the  power  and  imposes  the  duty  to  regulate  such  connections. 
Many  industries  own  private  switch  tracks  connecting  with  a 
carrier ;  some  of  the  tracks  privately  owned  have  developed  so 
far  as  to  become  incorporated  as  railways.  That  connections 
may  in  proper  cases  be  required  to  be  made  by  the  carriers  with 
these  industrial  tracks  or  industrial  railways  has  been  shown  in 
the  preceding  section.  When  such  connections  are  made,  cars 
are  delivered  from  the  line  of  the  carrier  to  the  industrial  track 
or  railway,  and  sometimes  the  line  carrier  delivers  incoming  cars 
over  and  takes  outgoing  cars  from  the  plant  tracks.  Obviously 
such  delivery  and  receipt  of  cars  is  valuable  to  the  industry 
and  costs  the  carrier  something.  Carriers  have  made  allowances 
from  their  rates  to  such  industries  or  to  their  subsidiary  rail- 
ways in  the  form  of  rate  divisions,  per  diem  reclaims,  remission 
of  car  demurrage,  furnace  allowances,  and  have  performed  serv- 
ices without  additional  charges  over  the  line  rate  by  placing 
cars  at  points  on  the  tracks  or  railways  of  the  industry. 

These  allowances  and  remissions  were  discussed  by  the  Com- 
mission in  the  First  Industrial  Railways  case,^^  and  held  to  be 
illegal. 

°  Grand  Trunk  R.  Co.  v.  Michi-  Cent.  R.  Co.  v.  Railroad  Com.  of 

gan  Railroad  Com.,  231  U.  S.  457,  La.,  236  U.  S.,  157,  59  L.  Ed.  — , 

58    L.    Ed.    310,    34    Sup.    Ct.    152;  35    Sup.    Ct.    275. 
Alichigan   C.   R.   Co.  v.   Michigan  "So.  Ry.  Co.  v.  St.  Louis  Hay 

Railroad   Com.,  236  U.  S.   615,   59  &    Grain    Co.,    214   U.    S.    297,    53 

L.  Ed.  — ,  35  Sup.   Ct.  422;  Penn.  L.    Ed.    1004,   29   Sup.    Ct.   678. 
Co.   V.   U.    S.,   236   U.    S.    351,    59  "  Industrial    Railways    Case,   29 

L.    Ed.   — ,    35    Sup.    Ct.    370;    III.  I.   C.   C.  212. 


194.] 


OF  THE  Act  to  Regulate  Commerce. 


315 


"Spotting  cars"  in  so  far  as  the  phrase  has  a  definite  meaning, 
is  the  service  performed  by  a  Hne  carrier  of  placing  or  receiving 
cars  for  a  plant  beyond  the  point  of  interchange  between  the 
rails  of  the  carrier  and  the  tracks  of  the  industry,  and,  as  such 
practice  is  so  defined,  it  was  held  illegal  unless  a  reasonable 
charge  was  made  for  the  service. ^- 

The  Commerce  Court  held  invalid  an  order  of  the  Commis- 
sion requiring  an  interstate  carrier  to  deliver  freight  to  indus- 
trial tracks  at  the  same  rate  as  when  the  delivery  was  made  to 
the  team  track  of  the  carrier,  a  decision  which  appears  sound 
and  which  was  not  appealed  from.^-^  There  can  be  no  doubt 
under  the  decisions  of  the  Supreme  Court,  that  tap  line  and  in- 
dustrial roads  are  entitled  to  a  reasonable  division  or  allowance 
from  the  road  enjoining  the  line  haul.  The  Commission  may 
not  deprive  the  short  line  of  this  right,  but  the  Commission  has 
jurisdiction  to  regulate  the  amount  of  the  allowance  or  division 
as  in  cases  of  other  charges  by  common  carriers.^"* 

§  194.  Switch  Connections  with  Carriers  by  Water. — 
The  Panama  Canal  Act  gives  jurisdiction  to  the  Commission 
over  interstate  transportation  "by  rail  and  water  through  the 
Panama  Canal  or  otherwise,"  and  "of  the  carriers,  both  by  rail 
and  by  water,  which  may  or  do  engage  in  the  same,"  and  gives 
the  Commission  power  to  establish  physical  conneclions  between 
the  lines  of  the  rail  carrier  and  the  dock  of  the  water  carrier 


"  Industrial  Railways  Case,  29 
I.  C.  C.  212,  234.  Spotting  was 
defined  in  a  tariff  suspended  by 
the  Commission  as  "service  be- 
yond a  reasonable  convenient 
point  of  exchange."  In  a  brief  it 
was  defined  as  "placing  a  car  at 
a  particular  spot."  See  also 
Alan  Wood  Iron  &  Steel  Co.  v. 
Pennsylvania  R.  Co.,  22  I.  C.  C. 
540. 

"Atchison,  T.  &  S.  F.  Ry.  Co. 
V.  Interstate  Com.  Com.,  188 
Fed.  229  and  929,  Opinion  Com- 
merce Court  No.  2,  p.  3,  enjoin- 
ing the  order  of  the.  Commission 
in  Associated  Jobbers  of  Los 
Angeles  v.  Atchison,  T.  &  S.  F. 
Ry.   Co.,   18   I.    C.   C.   310.     Com- 


merce Court  reversed.  Interstate 
Com.  Com.  v.  Atchison,  T.  &  S. 
F.  Ry.  Co.,  234  U.  S.  294,  58  L. 
Ed.    1319,    34    Sup.    Ct.    814. 

"  Sees.  170,  171,  supra.  Note 
13,  supra,  this  chapter.  Tap 
Line  Cases,  234  U.  S.  1,  58  L. 
Ed.  1185,  34  Sup.  Ct.  741;  Man- 
ufacturers' Railway  Co.  v.  St.  L. 
I.  M.  &  S.  Ry.  Co.,  32  I.  C.  C. 
578;  Industrial  Railways  Case,  32 
I.  C.  C.  129;  Car  Ferry  Allow- 
ance at  Cheboygan,  32  I.  C.  C. 
578;  Trap  or  Ferry  Car  Service 
Charges,  34  I.  C.  C.  516;  Second 
Industrial  Railways  Case,  34  I. 
C.  C.  596;  Car  Spotting  Charges, 
34  I.   C.   C.   609. 


316  Enforcement  by  the  Commission  [§  195. 

when  such  "connection  is  reasonably  practicable,"  and  "can  be 
made  with  safety  to  the  public,  and  where  ihe  amount  of  busi- 
ness to  be  handled  is  sufficient  to  justify  the  outlay."  ^^ 

It  was  argued  before  the  Commission  that  the  words  "or 
otherwise"  modified  the  phrase  "by  rail  and  water"  and  not  the 
phrase  "through  the  Panama  Canal."  This  construction  was  not 
adopted  and  it  was  held  that  by  reason  of  the  words  "or  other- 
wise," the  Commission  had  jurisdiction  to  establish  through 
routes  and  joint  rates  between  rail  earners  and  water  carriers, 
those  operating  through  the  Canal  and  those  operating  on  other 
waters.  Not  to  adopt  the  construction  given  the  statute  by  the 
Commission  would  leave  the  words  "or  other\vise"  mere  sur- 
plusage, to  do  which  would  violate  the  fundamental  canons  of 
statutory  construction. ^^ 

§  195.  Through  Routes. — It  is  made  the  duty  of  the  carriers 
subject  to  the  Act  "to  establish  through  routes. "i' 

The  Commission  may,  after  hearing  on  a  complaint,  establish 
through  routes  and  joint  rates  as  the  maximum  to  be  charged 
and  prescribe  the  division  of  such  rates  and  the  terms  and  condi- 
tions under  which  such  through  routes  shall  be  operated,  when 
that  may  be  necessary  to  give  efifect  to  any  provision  of  the  Act, 
and  the  carriers  complained  to  have  refused  or  neglected  volun- 
tarily to  establish  such  through  routes  and  joint  rates.  This  ju- 
risdiction exists  when  one  of  the  carriers  is  a  water  line. 

The  Panama  Canal  Act,  as  shown  in  the  preceding  section,  ex- 
tended the  power  of  the  Commission  over  transportation  by 
water  and  also  gave  the  Commission  power  to  establish  through 
routes  and  maximum  joint  rates  between  and  over  such  rail  and 
water  lines,  and  to  determine  all  the  terms  and  conditions  under 
which  such  lines  shall  be  operated  in  the  liandling  of  the  traffic 
embraced. ^'^ 

'^'Act  March  24,   1912,   Sec.  377,  P.     Co.,    31    I.    C.    C.    472;    Port 

post.  Huron    &    Duluth    S.    S.    Co.    v. 

''Augusta  &  Savannah  Steam-  P.  R.  Co.,  35  I.  C.  C.  475. 
boat  Co.  V.  Ocean  Steamship  Co.,  "  Sec.  1  of  Act,  Sec.  338,  post. 
26  I.  C.  C.  380,  385;  Federal  Su-  "Act  August  24,  1912,  Sees, 
gar  Refining  Co.  v.  Central  R.  Co.  376,  377,  post;  Augusta  &  Savan- 
of  New  Jersey,  35  I.  C.  C.  488;  nah  Steamboat  Co.  z:  Ocean 
Decatur  Navigation  Co.  v.  L.  &  Steamship  Co.,  26  I.  C.  C.  380; 
N.  R.  Co.,  31  I.  C.  C.  281;  Bowl-  Truckers  Transfer  Co.  v.  Char- 
ing Green  Bus.  Men's  Protective  leston  &  W.  C.  Ry.  Co..  27  I.  C. 
Asso.  V.  L.  &  N.  R.  Co.,  31  I.  C.  275. 
C.    C.    1;    Pacific   Nav.    Co.    v.    S. 


§  195.]  OF  THE  Act  to  Regulate  Commerce.  317 

The  Amendment  of  Jmie  18,  1910,  omitted  from  the  statute 
the  words,  "provided  no  reasonable  or  satisfactory  through  route 
exists."  Under  the  old  law,  the  non-existence  of  a  reasonable  or 
satisfactory  through  route  was  jurisdictional,  and  where  there 
was  such  through  route  the  Commission  had  no  power  to  order 
another.19 

Under  the  old  law  it  was  said : 

"It  may  be  laid  down  as  a  general  rule,  admitting  of  no  qual- 
ification, that  a  manufacturer  or  merchant  who  has  traffic  to 
move  and  is  ready  to  pay  a  reasonable  rate  for  the  service,  has 
a  right  to  have  it  moved  and  to  have  reasonable  rates  established 
for  the  movement,  regardless  of  the  fact  that  the  revenues  of 
the  carrier  may  be  reduced  by  reason  of  its  competition  with 
other  shippers  in  the  same  market ;  and  he  has  the  right  also  to 
have  the  benefit  of  through  routes  and  reasonable  joint  rates  to 
such  distant  markets  if  no  reasonable  or  satisfactory  through 
route  already  exists. "^o 

A  limitation  as  to  the  character  of  the  through  route  was  pre- 
scribed by  the  Amendment  of  1910  by  the  provision  that  no  com- 
pany without  its  consent  should  be  required  to  embrace  in  such 
route  substantially  less  than  the  entire  length  of  its  railroad  and 
of  any  intermediate  railroads  operated  in  conjunction  and  under 
a  common  management  or  control  therewith.-^ 

While  the  limitation  is  stated  positively,  a  carrier  could  not 
use  it  to  discriminate  in  violation  of  other  provisions  of  the  Act,^- 
nor  is  it  a  protection  to  the  carrier  when  charging  an  unrea- 
sonable rate  because  the  provision  that  between  two  given  points 

^°  Interstate      Com.      Com.      v.  Lumber  Mnfg.  Assn.  v.  Northern 

Northern    Pac.    Ry.    Co.,    216    U.  Pac.  R.  Co.,  14  I.  C.  C.  51,  53. 

S.    538,    54    L.    Ed.    608,    30    Sup.  '"  Cardiff    Coal    Co.   v.    Chicago, 

Ct.    417;    Enterprise    Transporta-  M.  &  St.  P.  Ry.   Co.,  13  I.  C.  C. 

tion  Co.  V.   Pennsylvania  R.  Co.,  460.     As   sustaining  the   text   see 

12     I.      C.      C.     326;      Enterprise  P.    R.    Co.   v.   United   States,   236 

Transportation     Co.    v.    Pennsyl-  U.   S.   351,   59   L.   Ed.  — ,   35   Sup. 

vania    R.    Co.,    16    I.    C.    C.    219,  Ct.    370. 

222;    Southern     California     Sugar  "^  Sec.  401,  post,  for  full  text  of 

Co.    V.    San    Pedro,    L.    A.    &    R.  provision. 

Co.,    19    I.    C.    C.    6;    Cedar    Hill  "Proposition  urged  but  not  de- 
Coal  &  Coke   Co.  V.   Colorado  &  cided,  Hughes  Creek  Coal  Co.  v. 
S.     Ry.     Co.,     17     I.     C.     C.    479;  Kanawha    &    M.    Ry.    Co.,    29    I. 
Spring   Hill    Coal    Co.   v.    Erie   R.  C.  C.  671,  679. 
Co.,  18  I.  C.  C.  508;  Pacific  Coast 


318  Enforcement  by  the  Commission  [§  195. 

a  carrier  shall  not  be  deprived  of  a  haul  which  it  is  capable  of 
providing  by  a  reasonably  direct  route. -^  Other  than  this  lim- 
itation under  the  law  as  it  now  exists,  the  Commission  has  dis- 
cretionary power. 2^ 

The  Commission  refused  to  estabhsh  a  through  route  with 
tugs  and  barges  operated  by  the  owner  of  practically  the  whole 
freight  which  would  use  the  route  if  one  were  established ;  -^  but 
the  mere  fact  that  only  one  shipper  may  at  the  outset  use  the 
connection,  does  not  prevent  the  connection  from  having  a  public 
purpose. 2^ 

The  Commission  having  no  jurisdiction  of  railroads  and 
steamship  lines  located,  owned  and  operated  entirely  in  an  adja- 
cent foreign  country,  can  not  establish  through  routes  there- 
with.27 

Agreements  between  connecting  railway  and  steamship  car- 
riers to  establish  through  routes  and  joint  rates  and  to  refuse 
such  an  arrangement  with  other  connecting  carriers,  resulting  in 
high  and  discriminatory  charges,  with  the  intent  and  result  of 
eliminating  competition,  violates  the  anti-trust  laws  of  the 
United  States.  Whether  or  not  the  giving  or  refusing  joint 
■'iffic  arrangements  is  in  violation  of  the  commerce  acts,  is  a 
question  which  the  courts  have  no  jurisdiction  to  determine  in 
advance  of  action  by  the  Interstate  Commerce  Commission. -^ 

The  broad  purpose  of  this  provision  is  well  stated  by  the  Com- 
mission as  follows : 

"The  railroads  of  the  country  are  called  upon  to  so  unite 
themselves  that  they  will  constitute  one  national  system ;  they 

°*  Meridian     Fertz.     Factory    v.  ^  Guh"  Coast  Navigation  Co.  v. 

Texas   &   Pac.    Ry.    Co.,   26    I.    C.  Kansas   City   Sou.   Ry.   Co.,   19   I. 

C.    351,    352.  C.    C.    544. 

'*  Truckers     Transfer      Co.      v.  ""  Union   Lime    Co.   v.   C.    &   N. 

Charleston   &  W.   C.   Ry.   Co.,  27  W.  Ry.   Co..  233  U.  S.  211,  58  L. 

I.     C.    C.    275,    277,    quoting    the  Ed.  924,  34  Sup.   Ct.  522;   Federal 

Commerce    Court   in    Crane    Iron  Sugar    Refining    Co.    v.    C.    of   N. 

Works  V.  United  States,  209  Fed.  J.  Ry.  Co.,  35  I.  C.  C.  488. 

238,    Commerce    Court     Opinion  "' Humbolt      Steamship     Co.    v. 

No.  55,  p.  453,  4fil,  not  appealed.  White   Pass   &  Yukon   Route,  25 

For  report  of  the  Commission  in  I.    C.    C.    136. 

the    same    case    see.    Crane    Iron  ^United    States    v.     Pacific     & 

Works  V.  Central  R.  Co.  of  New  Arctic  Ry.  &  Nav.  Co.,  228  U.  S. 

Jersey,  17  I.  C.  C.  514,  and  Crane  87,  57  L.  Ed.  74$,  33  Sup.  Ct.  443. 
R.   Co.  V.   Philadelphia   &  R.  Ry. 
Co.,    15    I.    C.    C.   248. 


§  196.]  OF  THE  Act  to  ReguIvAte  Commerce.  319 

must  establish  through  routes,  keep  these  routes  open  and  in 
operation,  furnish  the  necessary  facilities  for  transportation, 
make  reasonable  and  proper  rules  of  practice  as  between  them- 
selves and  the  shippers,  and  as  between  each  other. "^^ 

A  carrier  publishing  a  joint  through  rate  is  responsible  there- 
for.^*' Electric  railways  are  entitled  to  through  routes  and  joint 
rates.-^^ 

§  196.  Division  of  Joint  Rate. — When  joint  rates  are  estab- 
lished by  order  of  the  Commission,  or  otherwise,  and  carriers 
fail  to  agree  among  themselves  upon  the  apportionment  or  di- 
vision thereof,  the  Commission  may,  after  hearing,  prescribe  the 
just  and  reasonable  proportion  of  such  joint  rate  to  be  received 
by  each  carrier  party  thereto.-"-  Speaking  of  this  power  Mr. 
Commissioner  Harlan,  delivering  the  opinion  of  the  Commis- 
sion, said :  ^^ 

"The  phrase  'the  just  and  reasonable  proportion  of  such 
joint  rate  to  be  received  by  each  carrier'  necessarily  implies  that 
it  is  the  duty  of  the  commission  in  fixing  divisions  to  take  into 
consideration  all  the  circumstances,  conditions,  and  equities  that 
are  necessary  to  arrive  at  what  is  a  fair  and  proper  adjustment 
of  the  situation  as  between  the  two  roads,  and  precludes  the 
idea  that  joint  rates  must  be  divided  between  the  participating 
carriers  on  a  mileage  or  any  other  fixed  basis." 

^Missouri    &   Illinois   Coal   Co.  ''Sees.   397,  and  400,  post. 

V.   Illinois   Cent.   R.   Co.,   22   I.   C.  ''  Star  Grain   &  Lumber  Co.  v. 

C.   39,    45.  Atchison,  T.  &  S.  F.   Ry.   Co.,  14 

'"Black   Horse   Tob.    Co.   v.   II-  I.  C.  C.  334,  370.    Without  giving 

linois    Cent.    R.    Co.,    17    I.    C.    C.  force    to    the    words    "or    other- 

588;     Texico     Transfer     Co.     v.  wise*    in    the    statute    the    Com- 

Louisville   &  N.   R.   Co.,  20  I.   C.  mission  expressed  a  doubt  as   to 

C.    17.  its    power    to    prescribe    divisions 

"  Louisville   Board   of  Trade  v.  of     rates     not     fixed     by    it.      Re 

Indianapolis,   C.   &  S.  T.    Co..  27  Wharfage   Charges  at   Galveston, 

T.     C.     C.    499,     and    cases    cited.  23  I.  C.  C.  535,  546.     Giving  force 

That   a   through    route   could   not  to    all    the    words    of   the    statute 

be     made     with      tlie      Columbus  there    seems    to    be    no    room    to 

Traction    Co.    was    placed    on   the  doul)t     the     jurisdiction     of     the 

ground    that    such    companv   was  Commission    in    all    cases    where 

not  a  lateral  branch  road.    United  there  is  a   failure  of  the   carriers 

States  V.  Baltimore  &  O.  R.  Co.,  to  agree. 
226   U.    S.    14.    57    L.    Ed.    104,    33 
Sup.   Ct.   5. 


320 


Enforcement  by  the  Commission 


:§  197. 


§  197.  Allowances  to  Shippers  for  Services  and  Facili- 
ties.— The  statute  reads:  ^-^ 

"If  the  owner  of  property  transported  under  this  Act  directly 
or  indirectly  renders  any  service  connected  with  such  transpor- 
tation, or  furnishes  any  instrumentality  used  therein,  the  charge 
and  allowance  therefor  shall  be  no  more  than  is  just  and  reason- 
able, and  the  Commission  may,  after  hearing  on  a  complaint  or 
on  its  own  initiative,  determine  what  is  a  reasonable  charge  as 
the  maximum  to  be  paid  by  the  carrier  or  carriers  for  the  ser- 
vices so  rendered  or  for  the  use  of  the  instrumentality  so  fur- 
nished, and  to  fix  the  same  by  appropriate  order." 

This  statute  has  received  consideration  in  many  cases.  It  is 
not  open  to  question  that  when  a  shipper  renders  services  con- 
nected with  the  transportation  of  his  goods  or  furnishes  any  in- 
strumentality used  therein,  a  charge  and  allowance  therefor  is 
recognized  by  the  law.  This  charge  and  allowance  must  be  just 
and  reasonable,  that  is,  it  must  not  be  too  high  nor  discriminate 
against  another  shipper  rendering  a  like  service  or  furnishing  a 
like  instrumentality.-^'' 

The  Commission  has  held  that  this  charge  and  allowance  must 
be  limited  to  the  cost  of  the  service.-''^ 


"  Sec.  15  being  added  thereto 
by  Act  June  29,  1906,  post.  Sec. 
404. 

'=  Central  Stock  Yards  Co.  v. 
Louisville  &  N.  R.  Co.,  192  U. 
S.  568,  48  L.  Ed.  565,  24  Sup.  Ct. 
339;  Railroad  Com.  of  Kentucky 
V.  Louisville  &  N.  R.  Co..  10  L 
C.  C.  173;  Cattle  Raisers  Assn. 
V.  Chicago,  B.  &  Q.  R.  Co.,  11 
I.  C.  C.  277;  Central  Stock  Yards 
Co.  V.  Louisville  &  N.  R.  Co.,  118 
Fed.  113,  55  C.  C.  A.  63,  63  L. 
R.  A.  213,  affirmed,  192  U.  S. 
568,  48  L.  Ed.  565,  24  Sup.  Ct. 
339;  Covington  Stock  Yards  Co. 
V.  Keith,  139  U.  S.  128,  35  L. 
Ed.  73,  11  Sup.  Ct.  461;  Butch- 
ers, etc..  Stock  Yards  Co.  v. 
Louisville  &  N.  R.  Co.,  67  Fed. 
35,  14  C.  C.  A.  290;  United  States 
V.  Delaware,  L.  &  W.  R.  Co.   (C. 


C),  40  Fed.  101;  Consolidated 
Fordg.  Co.  V.  Southern  Pac.  Co., 
9  L  C.  C.  182;  Excursion  Car 
Co.  V.  Pennsylvania  R.  Co.,  3  L 
C.  C.  577;  In  re  Transportation 
of  Fruit,  10  I.  C.  C.  360;  Peavey 
Co.  V.  Union  Pac.  R.  Co.  (C.  C), 
176  Fed.  409,  affirmed  222  U.  S. 
42,  56  L.  Ed.  83,  32  Sup.  Ct.  22; 
Interstate  Com.  Com.  v.  Diffen- 
baugh,  222  U.  S.  42.  56  L.  Ed.  S3, 

32  Sup.  Ct.  22;  Fouche  River 
Lumber  Co.  v.  Bryant  Lumber 
Co.,  230  U.  S.  816,  57  L.  Ed.  1498, 

33  Sup.  Ct.  887;  Mitchell  Coal 
&  Coke  Co.  V.  Pennsylvania  R. 
Co.,  230  U.  S.  247,  57  L.  Ed.  1472. 
33   Sup.   Ct.  916. 

^^  Re  Allowances  to  Elevators, 
12  I.  C.  C.  85;  Federal  Sugar  Re- 
fining Co.  V.  Baltimore  &  O.  R. 
Co.,    17    1.    C.    C.   40,    47. 


§  197.]  OF  the;  Act  to  Regulate  Commerce.  321 

The  Commission  in  the  Sugar  Lighterage  case  •""  did  not  deny 
the  validity  or  application  of  the  statute,  but  held  that  the  fact 
that  one  sugar  refinery  owned  and  operated  a  dock  and  terminals 
for  the  railroad  did  not  justify  an  allowance  thereto  when  such 
allowance  was  denied  another  refinery  owning  no  such  terminals 
but  tendering  sugar  brought  by  boat  to  the  same  pier  as  that  to 
which  the  first  company  brought  its  sugar.  The  issue  of  law  in 
this  case  was  therefore  whether  or  not  undue  discrimination  ex- 
isted. This  issue  of  law  was  determined  by  the  Commerce  Court 
differently  from  the  Commission.    The  Commerce  Court  said :  ^^ 

"We  find  Arbuckle  Bros,  owning  the  Jay  Street  terminal,  used 
as  a  public  terminal  of  petitioners  within  the  lighterage  limits. 
We  find  the  Federal  Sugar  Refining  Company,  with  its  refinery 
at  Yonkers,  10  miles  north  of  the  lighterage  limits,  owning  and 
operating  no  public  terminal  for  petitioners,  and  tendering  pe- 
titioners no  freight  at  any  of  their  public  terminals.  So  that  we 
can  not  see  how  any  violation  of  either  section  2  or  section  3  can 
be  predicated  of  the  facts  stated  in  the  record."  The  Supreme 
Court  held  there  was  no  undue  discrimination  and  affirmed  the 
decision  of  the  Commerce  Court. ^^ 

The  Supreme  Court  held  allowances  to  grain  elevators 
proper,  ■^'>  but  that  such  allowances  should  be  free  from  discrimi- 
nation.-*^ 

The  so-called  tap  line  allowances  or  divisions  to  short  roads 
owned  or  controlled  by  a  shipper  must  be  without  discrimination, 
otherwise,  said  the  Supreme  Court,  "it  amounts  to  a  rebate. "-^^ 

What  this  allowance  means  was  considered  and  discussed 
by  the  Commission  in  the  tap  line  case.^'^  The  Supreme  Court 
reversed  the  order  of  the  Commission  and  held  that  tap  line 
allowances  were  legal.^'* 

"  Federal    Sugar    Refining    Co.  "  Union    Pac.    Ry.    Co.    v.    Up- 

V.   Baltimore    &   O.    R.    Co.,   20   I.  dike,  223  U.  S.  21,5,  56  L.  Ed.  171, 

C.    C.    200.  33   Sup.    Ct.   39. 

''Baltimore  &  O.  R.  Co.  v.  "Illinois  Cent.  R.  Co.  v.  In- 
United  States,  200  Fed.  779,  terstate  Com.  Com.,  206  U.  S. 
Opinion  Commerce  Court  No.  441,  444,  .51  L.  Ed.  1128,  27  Sup. 
38,   p.   499.  Ct.   700. 

'"United     States    v.     Baltimore  "Tap    Line    Case,    23    I.    C.    C. 

&    O.    R.    Co.,    231    U.    S.    274,    58  277   and    549. 

L.   Ed.  218,   34   Sup.   Ct.  75.  "United   States  v.  Louisiana   & 

"Interstate  Com.  Com.  v.  Dif-  P.    R.    Co.— Tap   Line   Cases,   234 

fenl)augh,  222  U.  S.  42,  56  L.  Ed.  U.    S.    1,   58   L.   Ed.   1185,   34   Sup. 

83,    32    Sup.    Ct.    22.  Ct.    741,    34    I.    C.    C.    116. 
—11 


322  Enforcement  by  the  Commission  [§  198. 

Industrial  railways  present  similar  questions.  These  have  been 
discussed  section  171  supra. 

The  meaning  of  the  word  "transportation"  in  this  connection 
was  defined  by  District  Judge  Rellstab  in  an  opinion  which  as  to 
this  question  seems  to  be  comprehensive,  clear  and  accurate. 
Under  his  definition,  draying  sugar  from  a  refinery  to  a  railroad 
was  not  transportation  nor  service  in  connection  therewith  within 
the  legislative  meaning,  but  was  a  drayage  service  falling  nor- 
mally upon  the  shipper.^J  The  decision  of  Judge  Rellstab  was 
reversed,  but  the  opinion  on  appeal  is  not  inconsistent  with  the 
definition  of  the  court  below,  but  is  explainable  on  the  theory 
that  the  Circuit  Court  of  Appeals  held  that  a  payment  made  to 
all  in  like  condition  was  not  a  rebate,  whether  an  allowance 
within  the  meaning  of  section  15  or  not.'*''' 

§  198.  Distribution  of  Cars. — Transportation  includes  cars 
and  other  vehicles  and  all  instrumentalities  and  facilities  of  ship- 
ment or  carriage,  and  it  is  the  duty  of  every  carrier  subject  to 
the  provisions  of  the  Act  to  Regulate  Commerce  to  provide  and 
furnish  transportation.  The  Commission  is  given  jurisdiction  to 
enforce  this  duty.  Where  carriers  fail  to  furnish  cars  without 
discrimination  this  jurisdiction  may  be  invoked  that  the  govern- 
mental power  of  regulation  may  be  used  in  compelling  a  just 
and  equal  distribution  of  cars  and  the  prevention  of  an  unjust 
and  discriminating  one. 

In  determining  whether  a  particular  car  distribvition  is  just 
and  equal  or  unjust  and  discriminatory,  the  Commission  may 
consider  the  producing  capacity  of  the  shippers  and  all  cars  used 
in  the  transportation  whether  they  be  private  cars  or  cars  used 
by  the  carrier  for  its  own  fuel,  and  the  courts  have  no  jurisdic- 
tion over  the  question  until  after  action  thereon  by  the  Commis- 
sion.4' 

"  American   Sugar  Refining  Co.  merce   Court   reversed.   Interstate 

V.    Delaware.    L.    &   W.    Ry.    Co..  Com.  Com.  v.  Atchison,  T.  &  S. 

200    Fed.    652.      See    also,    Atchi-  F.   Ry.   Co.,   234  U.   S.   294,  58   L. 

son,     T.     &     S.     F.     Ry.     Co.     v.  Ed.    1319,   34    Sup.    Ct.    814. 

Interstate     Com.    Com.,   188   Fed.  '"'American  Sugar  Refining  Co. 

229      and      929,      Opinion      Com-  v.    Delaware,    L.    &   W.    Ry.    Co., 

merce   Court   No.   2,   p.   3.   enjoin-  207   Fed.  733,   125   C.   C.  A.  251. 

ing  the  order  of  the  Commission  *'  Interstate    Com.    Com.    v.    II- 

in     Associated     Jobbers     of     Los  linois  Cent.  R.  Co.,  215  U.  S.  452, 

Angeles  v.  Atchison,  T.   &  S.   F.  54   L.    Ed.   280,   30   Sup.    Ct.    155: 

Ry.   Co.,   18    I.   C.   C.   310.     Com-  Interstate  Com.  Com.  v.  Chicago 


§  199.]  OF  THE  Act  to  Regulate;  Commerce.  323 

Where,  however,  the  question  involved  is  not  the  administra- 
tive question  of  what  is  a  reasonable  rule,  but  the  judicial  ques- 
tion of  whether  or  not  the  rule  in  force  has  been  complied  with, 
the  courts  have  jurisdiction  without  prior  action  by  the  Commis- 
sion.'*^ 

§  199.  Long  and  Short  Haul  Provisions,  History  of. — 
Section  four  of  the  original  Act  to  Regulate  Commerce  ■^^  prohib- 
ited "under  substantially  similar  circumstances  and  conditions" 
a  greater  charge  for  a  shorter  than  for  a  longer  distance  over 
the  same  line  in  the  same  direction,  the  shorter  being  included 
within  the  longer  distance.  The  proviso  to  this  section  gave 
power  to  the  Commission  to  relieve  carriers  from  the  require- 
ments thereof. 

Judge  Cooley  in  construing  this  section  and  provision  an- 
nounced principles  which  may  be  quoted,  as  such  principles  fi- 
nally became  the  settled  construction  of  the  law.     He  said :  ^"^ 

"That  which  the  act  does  not  declare  unlawful  must  remain 
lawful  if  it  was  so  before ;  and  that  which  it  fails  to  forbid  the 
carrier  is  left  at  liberty  to  do  without  permission  of  any  one. 
The  charging  or  receiving  the  greater  compensation  for  the 
shorter  than  the  longer  haul  is  seen  to  be  forbidden  only  when 
both  are  under  substantially  similar  circumstances  and  condi- 
tions;  and,  therefore,  if  in  any  case  the  carrier,  without  first  ob- 
taining an  order  of  relief,  shall  depart  from  the  general  rule, 
its  doing  so  will  not  alone  convict  it  of  illegality,  since  if  the  cir- 
cumstances and  conditions  of  the  two  hauls  are  dissimilar  the 
statute  is  not  violated. 

"Should   an  .interested   party   dispute   that   the   action   of   the 

&    A.    R.    Co.,    215    U.    S.    479,    54  Hill    Coal    Co.,   238    U.    S.   275.    59 

L.   Ed.  291,  30  Sup.   Ct.   163;   Bal-  L.  Ed.  — ,  35  Sup.  Ct.  760;  Penn. 

timore    &    O.    R.    Co.    v.    United  R.   Co.  v.  Clark  Bros.   Coal  Min- 

States      ex      rel.      Pitcairn      Coal  ing  Co.,  238  U.  S.  456,  59  L.   Ed. 

Co.,  215  U.   S.  481,  54  L.   Ed.  292,  — ,   35   Sup.    Ct.    896. 
30     Sup.     Ct.     164;     Vulcan     Coal  -"Act    February    4,    1887,    Chap. 

Mining    Co.    v.    I.    C.    R.    Co.,    33  104,  24  Stat.  L.  379,  U.  S.  Comp. 

I.   C.   C.   52.  Stat.   1901,   p.   3154,   3   Fed.   State. 

-'  Morrisdale  Coal   Co.  v.  Penn.  Ann.  809,  et  seq.     See  post. 
R.  Co.,  230  U.  S.  304.  57   L.   Ed.  '"  Re    Petition    Louisville    &    N. 

1474,   33    Sup.    Ct.   938;    Penn.    R.  R.   Co.  and  Southern   Pacific  Ry. 

Co.   V.   Puritan    Coal    Co.,   237   U.  &   Steamship   Co.,   1   I.    C.    C.   31, 

S.   ]21,   59    L.    Ed.  — ,   35   Sup.    Ct.  57,    1    I.    C.    R.    278. 
484;    111.    C.    R.    Co.    V.    Mulberry 


324  Enforcement  by  the:  Commission  [§  200. 

carrier  was  warranted,  an  issue  would  be  presented  for  adjudi- 
cation, and  the  risks  of  that  adjudication  the  carrier  would  neces- 
sarily asstniie.  The  later  clause  in  the  same  section,  which  em- 
powers the  Commission  to  make  orders  for  relief  in  its  discretion, 
does  not  in  doing  so  restrict  it  to  a  finding  of  circumstances  and 
conditions  strictly  dissimilar,  but  seems  intended  to  give  a  dis- 
cretionary authority  for  cases  that  could  not  well  be  indicated  in 
advance  by  general  designation,  while  the  cases  which  upon  their 
facts  should  be  acted  upon  as  clearly  exceptional  would  be  left 
for  adjudication  when  the  action  of  the  carrier  was  challenged. 
The  statute  becomes  on  this  construction  practical,  and  this  sec- 
tion may  be  enforced  without  serious  embarrassment." 

In  a  later  case  the  Commission  refused  to  follow  the  opinion 
of  Judge  Cooley,"'^  but  subsequently  the  Supreme  Court  adopted 
the  Cooley  rule,''-  with  Mr.  Justice  Harlan  vigorously  dissent- 
ing. It  was  held  that  the  burden  of  proof  to  show  dissimilarity 
of  circumstances  was  on  the  carrier,  and  that  "line"  used  in  the 
statute  meant  a  physical  line  and  not  a  mere  business  arrange- 
ment. 

§  200.  Relationship  of  Intermediate  and  Through  Rates. 
— The  amended  fourth  section  also  makes  it  unlawful  "to  charge 
any  greater  compensation  as  a  through  route  than  the  aggregate 

^^  Railroad     Com.     of     Georgia,  Ga.    Ry.    Co.   v.    Int.    Com.    Com., 

Trammell    et    al.    z:    Clyde    S.    S.  181    U.    S.    1,    45    L.    Ed.    719,    21 

Co.,    5    I.    C.    C.    324,    4    I.    C.    R.  Sup.   Ct.  510).     See  also  Int.  Com. 

120,    150.  Com.   V.    Clyde   S.   S.    Co.,   181   U. 

°'The  history  of  the  judicial  S.  29,  45  L.  Ed.  729,  21  Sup.  Ct. 
construction  appears  from  the  512;  Int.  Com.  Com.  v.  Louis- 
following  cases:  Int.  Com.  ville  &  N.  R.  Co.,  190  U.  S.  273, 
Com.  V.  Alabama  M.  R.  C,  168  47  L.  Ed.  1047,  23  Sup.  Ct.  687; 
U.  S.  144,  42  L.  Ed.  414,  18  Sup.  Brewer  v.  Central  of  Ga.  R.  Co., 
Ct.  45;  Int.  Com.  Com.  t.  Cin-  84  Fed.  258;  Int.  Com.  Com.  v. 
cinnati,  N.  O.  &  T.  P.  Ry.  Co.,  Western  &  A.  R.  Co.,  88  Fed. 
162  U.  S.  184,  40  L.  Ed.  935,  16  186;  Spartansburg  Board  of  Trade 
Sup.  Ct.  700;  Parsons  v.  Chicago  z\  Richmond  &  D.  R.  Co.,  2  I. 
&  N.  W.  Ry.  Co.,  167  U.  S.  447,  C.  C.  304,  2  I.  C.  R.  193;  Bos- 
42  L.  Ed.  231,  17  Sup.  Ct.  887;  ton  &  A.  R.  Co.  r.  Boston  &  L. 
Int.  Com.  Com.  v.  Detroit,  G.  H.  R.  Co.,  1  I.  C.  C.  158,  1  I. 
&  M.  Ry.  Co.,  167  U.  S.  633,  42  C.  R.  500,  571;  Daniels  v.  Chicago 
L.  Ed.  306,  17  Sup.  Ct.  986;  Lou-  R.  I.  &  P.  R.  Co..  6  I.  C.  C. 
isville  &  N.  R.  Co.  v.  Behlmer,  458,  476.  See  sections  152  to 
175  U.  S.  648.  44  L.  Ed.  309,  20  155,  suf'ra. 
Sup.   Ct.   209;    East   Tenn.,   \'a.   & 


§  201.]  OF  the;  Act  to  Regulate  Commerce.  325 

of  intermediate  rates  subject  to  tlie  provisions"  of  the  Act  to 
Resrulate  Commerce. 

This  rule  but  makes  statutory  what  was  a  general  principle 
applied  by  the  Commission. 

§  201.  Water  Competition. — The  last  paragraph  of  section 
four  of  the  amended  Act  provides : 

"Whenever  a  carrier  by  railroad  shall  in  competition  with  a 
water  route  or' routes  reduce  the  rates  on  the  carriage  of  any 
species  of  freight  to  or  from  competitive  points,  it  shall  not  be 
permitted  to  increase  such  rates  unless  after  hearing  by  the  In- 
terstate Commerce  Commission  it  shall  be  found  that  such  pro- 
posed increase  rests  upon  changed  conditions  other  than  the  elim- 
ination of  water  competition." 

§  202.  Power  of  the  Commission  under  the  Fourth  Sec- 
tion.— The  fourth  section  prohibits  three  things,  (a)  a  greater 
charge  for  a  shorter  than  a  longer  haul  under  the  circumstances 
named,  (b)  a  greater  charge  for  a  through  route  than  the  aggre- 
gate of  the  intermediate  rates  subject  to  the  Act,  (c)  an  increase 
of  rates  which  had  been  lowered  in  competition  with  water 
routes. 

These  provisions,  leave  carriers  no  discretion.  They  must 
be  obeyed  unless  the  Commission  orders  otherwise. 
The  exceptions  to  this  absolute  provision  must  be  such 
as  the  Commission  may  prescribe.  This  is  the  fundamental  dif- 
ference between  the  old  section  as  construed  and  the  present  law. 

The  power  is  given  the  Commission  upon  application,  after 
investigation,  to  authorize  the  carrier  "to  charge  less  for  longer 
than  for  shorter  distances,"  and  to  "prescribe  the  extent  to  which 
such  designated  common  carrier  may  be  relieved  from  the  op- 
eration of  the  section." 

The  provision  giving  the  right  to  prescribe  the  extent  of  relief 
which  may  be  granted,  might  with  reason  be  construed  as  being 
limited  by  the  language  giving  authority  to  "charge  less  for 
longer  than  for  shorter  distances;"  although  the  practice  of  the 
Commission  has  been  to  relieve  from  the  provision  relating  to 
through  routes  and  aggregate  intermediate  rates  as  well  as  limit- 
in-  the  relation  of  charges  in  the  long  and  short  haul  clause. 

Rates  lawfully  in  existence  when  the  amended  law  was  passed 
were  not  required  to  be  changed  prior  to  the  expiration  of  six 
months  after  such  time,  nor  then,  when  application   for  relief 


326  EXFORCEMEXT    BV    THE    COMMISSIOX  [§    203. 

was  filed,  "until  a  determination  of  such  application  by  the  Com- 
mission." 

The  Commission  also  has  power  to  permit  an  increase  of  rates 
lowered  to  meet  water  competition  "upon  changed  conditions 
other  than  the  elimination  of  water  competition." 

In  determining  its  power  under  this  statute  the  Commission 
held  the  law  constitutional,  that  the  provision  for  exceptions  to 
the  general  clause  did  not  give  the  Commission  arbitrary  or  ab- 
solute power,  that  the  burden  was  on  the  carrier  to  show  facts 
authorizing  an  exception  to  the  general  rule,  and  that  the  object 
of  the  law  was  to  make  "a  rule  of  well  nigh  universal  applica- 
tion," deviation  from  which  could  only  be  authorized  "to  meet 
transportation  circumstances  which  are  beyond  the  carrier's  con- 
trol," and  then  only  to  the  extent  necessary  to  meet  such  condi- 
tions.^^ The  orders  of  the  Commission  in  the  cases  in  which 
these  principles  were  announced  were  by  the  Commerce  Court 
set  aside. ^■^  Upon  appeal  the  Supreme  Court  reversed  the  Com- 
merce Court  and  sustained  the  jurisdiction  of  the  Commission. ^^ 

§  203.  Ownership  of  Water  Carriers  by  Railroads. — The 
Panama  Canal  Act  makes  it  unlawful  after  July  1,  1914,  for 
"any  railroad  company  or  other  common  carrier  subject  to  the 
act  to  regulate  commerce  to  own,  lease,  operate,  control,  or  have 
any  interest  whatsoever  (by  stock  ownership  or  otherwise,  either 
directly,  indirectly,  through  any  holding  company,  or  by  stock- 
holders or  directors  in  common,  or  in  any  other  manner)  in  any 
common  carrier  by  water  operated  through  the  Panama  Canal  or 
elsewhere  with  which  said  railroad  or  other  carrier  aforesaid 
does  or  may  compete  for  traffic  or  any  vessel  carrying  freight  or 
passengers  upon  said  water  route  or  elsewhere  with  which  said 
railroad  or  other  carrier  aforesaid  does  or  may  compete  for  traf- 
'  fie;  and  in  case  of  the  violation  of  this  provision  each  day  in 
which  such  violation  continues  shall  be  deemed  a  separate  of- 
fense." 

Jurisdiction  was  given  the  Commission  after  hearing  "to  de- 

''  Railroad    Com.   of   Nevada   v.  Opinion    Commerce    Court    Nos. 

Southern  Pac.  Co.,  21  I.  C.  C.  329,  50,   51,  p.  229. 

341;   Spokane,   City  of,  v.   North-  "'United  States  z'.  Atchison,  T. 

ern  Pac.  R.   Co..  21  I.   C.   C.  400.  &    S.    F.    Ry.    Co..    Intermountain 

-'*  Atchison,  T.  &  S.  F.  Ry.  Co.  Cases,   234   U.    S.   476.   58   L.   Ed. 

V.    United    States,    191    Fed.    856,  1408,    34    Sup.    Ct.    986;    Sec.    154, 

ante. 


§  204.]  OF  THE  Act  to  Regulate  Commerce.  327 

termine  questions  of  fact  as  to  the  competition  or  possibility  of 
competition."  This  determination  was  authorized  to  be  made  on 
the  appHcation  of  the  carrier,  or  shipper,  or  on  the  initiative  of 
the  Commission  itself,  and  in  all  cases  the  Commission's  order 
was  made  by  the  law  final. ^'^ 

If  an  "existing  specified  service  by  water  other  than  through 
the  Panama  Canal  is  being  operated  in  the  interest  of  the  pub- 
lic and  is  of  advantage  to  the  convenience  and  commerce  of  the 
people,"  and  if  "such  extension  will  neither  exclude,  prevent,  nor 
reduce  competition  on  the  route  by  water,"  the  Commission  may 
extend  the  time  beyond  July  1,  1914,  under  the  conditions  pre- 
scribed in  the  statute.^' 

The  principles  upon  which  the  Commission  has  acted  in  de- 
termining applications  under  this  statute  were  stated  in  Applica- 
tion of  Southern  Pacific  Co.  in  re  Operation  of  Steamship  Com- 
pany.^^ 

§  204.  The  Commission's  Duty  with  Reference  to  Sched- 
ule of  Rates. — It  is  the  duty  of  all  common  carriers  subject 
to  the  Act  to  Regulate  Commerce  to  file  with  the  Commission, 
print  and  keep  open  to  public  inspection  schedules  showing  all 
the  rates,  fares,  and  charges  for  transportation  both  on  their 
own  line  and  over  other  lines,  pipe  lines  and  water  connections 
with  which  they  have  established  a  through  route  and  joint  rates. 
Changes  in  these  schedules  can  not  be  made  without  thirty  days' 
notice ;  but  the  Commission  may,  in  its  discretion  and  for  good 
cause  shown,  allow  changes  upon  less  than  the  notice  herein  pro- 
vided, or  modify  the  requirements  of  this  section  in  respect  to 
publishing,  posting,  and  filing  tarififs,  either  in  particular  in- 
stances or  by  a  general  order  applicable  to  special  or  peculiar 
circumstances  or  conditions.  The  Commission  may  determine 
and  prescribe  the  form  in  which  the  schedules  required  by  this 
section  to  be  kept  open  to  public  inspection  shall  be  prepared  and 
arranged,  and  may  change  the  form  from  time  to  time  as  shall 
be  found  expedient. 

Under  the  power  given  with  reepect  to  the  schedules  of  rates 


""Act    August    24,    1912;    Sees.  vS.  P.  Co.  re  Operation  S.  S.  Co., 

353,    354,    post.  32   I.   C.    C.   692.     S.   P.    Co.   Own- 

"Act  August  24,  1912;  Sec.  355,  ership   of  Oil   Steamers,   34   I.   C. 

post.  C.  377;  Steamer  Lines  on  Chesa- 

■"  Sec.  355,  and  see  Application  peake   Bay,   35   I.   C.   C.  692. 


328  Enforcement  by  the  Commission  [§  204. 

to  be  charged  by  common  carriers  it  issues  administrative  orders 
from  time  to  time. 

Carriers  are  prohibited  from  engaging  or  participating  in  in- 
terstate transportation  "miless  the  rates,  fares,  and  charges 
*  *  *  have  been  filed  and  pubhshed"  as  provided  by  the  stat- 
ute. 

The  Commission  has  power  to  reject  tariils  under  certain  con- 
ditions.^'^ 

Tariff  provisions  relating  to  interchangeable  milage  tickets 
must  likewise  be  published.^ '^' 

Discrimination  w^as  one  of  the  evils  most  complained  of  prior 
to  the  original  Act  to  Regulate  Commerce  and  since,  and  that  Act 
and  the  supplemental  and  amendatory  Acts  have  been  framed  to 
afford  an  eff'ective  means  for  reducing  the  wrongs  resulting 
from  unjust  discrimination  and  undue  preference.  One  of  the 
means  of  effectuating  this  purpose,  is  that  of  placing  upon  all 
carriers  the  positive  duty  of  establishing,  filing  and  publishing 
schedules  of  reasonable  rates  with  a  uniform  application  and 
of  a  definite  meaning,  and  of  maintaining  and  collecting  such 
rates  so  long  as  they  remain  unaltered  in  the  manner  provided 
by  law.«i 

Where  the  tariff  shows  no  joint  through  rate,  carriers  par- 
ties to  a  through  bill  of  lading  must  collect  tlie  sum  of  the  local 
rates  shown  by  the  local  tariff's. '''- 

Where  an  agent  of  a  carrier  gives  a  shipper  a  rate  less  than 
that  prescribed  in  the  legally  filed  tariff,  the  shipper  must  never- 
theless pay  the  full  tariff'  rate,  ^^  and  a  rate  in  a  bill  of  lading  less 

''Sec.   6   of  Act:    Sec.   364.   and  *"  Texas    &     Pac.     Ry.     Co.    v. 

366,   post.  Mugg,    202    U.    S.    242,    50    L.    Ed. 

°"Sec.  22  of  Act;  Sec.  444.  post.  1011,   26  Sup.   Ct.   628;   Illinois   C. 

""Texas  &  Pac.  Ry.  Co.  v.  Abi-  R.     Co.    v.    Henderson    Elevator 

lene    Cotton    Oil    Co.,    204    U.    S.  Co.,  226  U.  S.  441.  57  L.  Ed.  290, 

426,    51    L.    Ed.    553,    27    Sup.    Ct.  33     Sup.     Ct.     176;     Kansas     City 

350;    Cincinnati,    X.    O.    &    T.    P.  Sou.  Ry.  Co.  v.  Albers  Com.  Co., 

Ry.  Co.  V.  Interstate  Com.  Com.,  223   U.   S.   573,   56   L.    Ed.   556,   32 

162  U.   S.   184,   40   L.   Ed.   935,    16  Sup.  Ct.  316;  New  York  C.  &  H. 

Sup.   Ct.   700,   5   I.   C.   R.   391,   167  R.    R.    Co.    v.    United    States.    212 

U.   S.  479,  42   L.   Ed.  243,  17   Sup.  U.   S.   500,  53  L.   Ed.   624,  29   Sup. 

Ct.    896.  Ct.  309;  but  the  Act  of  1910  pro- 

°*  United  States  v.  Xew  York  C.  vides  a  penalty  for  misquoting  a 

&   H.    R.    R.    Co..   212   U.    S.    509,  rate,  Sec.  180,  ante,  Sees.  205.  212, 

53   L.   Ed.  629,  29  Sup.   Ct.  313.  and  368,  post. 


§  205.]  OF  THE  Act  to  Regulate  Commerce.  329 

than  the  tariff  rate  will  not  relieve  a  shipper  from  paying  the  tariff 
rate  the  shipment  being  interstate,  although  the  statute  of  the  state 
in  which  the  bill  of  lading  was  issued  made  it  illegal  to  collect  a 
higher  rate  than  w^as  on  the  bill  of  lading  specified.*^'^  That  a 
schedule  of  rates  has  been  duly  filed  will  not  prevent  the  Com- 
mission from  declaring  such  rates  unreasonable  and  awarding 
reparation  for  the  amount  charged  and  collected  in  excess  of 
what  was  a  reasonable  rate.^^ 

§  205.  Damages. — In  addition  to  the  public  penalties  pre- 
scribed by  the  act,  a  carrier  is  liable  to  any  person  or  persons 
injured  by  its  violation  of  the  act  for  the  full  amount  of  dam- 
ages sustained  in  consecjuence  of  such  violation,  together  with  a 
reasonable  counsel  or  attorney's  fee,  to  be  fixed  by  the  court  in 
every  case  of  recovery.  The  only  damages  recoverable  under  this 
act  by  application  to  the  Commission  are  damages  for  a  viola- 
tion of  the  provisions  thereof,  consequently  the  Commission  has 
no  jurisdiction  to  award  damages  for  breach  of  contract  by  a 
carrier.  The  Commission  has  no  jurisdiction  to  award  damages 
against  a  shipper,  nor  can  a  carrier  set  off'  a  claim  for  under- 
charges or  other  damage  against  the  claim  of  a  shipper  for  rep- 
aration.^*^ 

The  language  of  the  statute  is  broad  and  makes  the  carrier  lia- 
ble for  damages  sustained  in  any  case  where  such  carrier  does  or 
causes  to  be  done  any  act,  matter,  or  thing,  prohibited  or  de- 
clared unlawful  by  the  statute.  Such  liability  exists  when  there 
is  a  failure  to  do  any  act,  matter,  or  thing,  required  by  the 
law/'" 

The  foregoing  right  stated  in  section  8  of  the  Act  in  so  far  as 
it  permits  a  recovery  of  damages  for  an  unlawful  charge  was  not 
created  by  the  section,  although  some  uncertainty  as  to  ths  full 
extent  of  the  right  was  removed  by  the  statute.  In  England  it 
had  been  held  that  a  shipper  paying  a  reasonable  rate  could  not 
recover  damages  because  of  a  discriminatory  rate  favoring  an- 

•"Gulf    C.    &    S.    F.    Ry.    Co.   V.  Louisville  &  N.   R.    Co.,   14   I.   C. 

Hefley,    158    U.    S.    98,    39    L.    Ed.  C.   R.    199.   204. 

910,   15    Sup.    Ct.   802;    Spratlin   v.  ""  Laning-Harris  C.  &  G.  Co.  v. 

St.  L.  &  S.  W.  Ry.  Co.,  76  Ark.  St.   Louis    &    S.    F.   R.    Co.,   15    L 

82,  88  S.  W.  836;  St.  L.   &  S.  W.  C.    C.    R.    37,    38;    Falls    &   Co.   v. 

Ry.    Co.    V.     Carden,    34    S.    W.  Chicago,    Rock    Island    &   P.    Ry. 

(Tex.)    145.  Co.,   15   I.   C.   C.   R.  269,   273. 

^Nicola,  Stone  &  Myers  Co.  v.  "'Sec.    8,    of   the   Act;    Sec.    382, 

tost. 


330  Enforcement  by  the  Commission  [§  206. 

other/'^  but  in  this  country  the  weight  of  authority  was  the  other 
way.  The  statute  removed  any  doubt  which  might  have  existed 
on  the  subject.^''  The  amount  of  recovery  is  stated  in  the  statute 
to  be  the  "full  amount  of  damages  sustained,"  which  is  not  dif- 
ferent from  the  common  law  measure  of  damages  in  cases  where 
damages  are  recoverable.  "The  right  to  recover,"  as  said  by  the 
Supreme  Court,  "is  limited  to  the  pecuniary  loss  suffered  and 
proved."'" 

§  206.  Damages— Power  of  the  Commission  to  Make 
Award  of. — Any  person  or  persons  claiming  to  be  damaged  by 
any  common  carrier  subject  to  the  provisions  of  the  Act  to  Reg- 
ulate Commerce  may  make  complaint  to  the  Commission,"  ^  by 
petition  which  shall  briefly  state  the  facts.  After  service  and 
hearing  of  which,"-  it  shall  be  the  duty  of  the  Commission  to 
make  a  report  in  writing  in  respect  thereto,  which  shall  state  the 
conclusions  of  the  Commission  together  with  its  decision,  order 
or  requirement  in  the  premises,  and  such  report  shall,  when 
there  is  an  award  of  damages,  include  the  findings  of  fact  on 
which  the  award  is  made.'^^ 

When  the  Commission  shall  determine  that  any  party  com- 
plainant is  entitled  to  an  award  of  damages,  it  shall  make  an 
order  directing  the  carrier  to  pay  the  complainant  the  sum  to 
which  he  is  entitled  on  or  before  a  day  named.  These  findings 
of  fact  and  the  order  based  thereon  are  prima  facie  evidence 
of  the  facts  therein  stated.'^ 

Prior  to  the  Amendment  of  ]March  2,  1889,  the  Commission 
held  that  a  claim  for  damages  "presents  a  case  at  common  law  in 
which  the  defendants  are  entitled  to  a  jury  trial,"  and  under 
the  then  law  awards  for  damages  were  not  made.'''^     Since  the 

"•"Great  Western  R.  Co.  v.  Sut-  79  C.  C.  A.  4S3;  St.  Louis,  S.  W. 

ton   L.   R.,   4   H.   L.   238,   38   L.  J.  R.   Co.  z-.  Lewellen,  192  Fed.  540. 

Exch.  N.  S.  177,  22   L.  T.   X.   S.  "Sec.  9  of  Act;  Sec.  383,  post. 

43.  18  Week.  Ref.  92.  "Sec.  13  of  Act;  Sec.  392,  post. 

■'■'  Parsons  v.   Chicago  &  N.  W.  "  Sec.  14  of  Act  Sec.    394,  post. 

R.   Co.,  167  U.  S.  447,  42  L.  Ed.  "Sec.  16  of  Act:  Sec.  407,  post. 

231,  17  Sup.  Ct.  887;  Pennsylvania  "Heck  v.  East  Tennessee,  Va. 

R.  Co.  V.  International  Coal  Min-  &  Ga.  Ry.   Co..  1  I.   C.  C.  495,   1 

ing  Co..  230  U.  S.  184,  57  L.  Ed.  I.  C.  R.  775;  Riddle  v.  New  York, 

1446,    33    Sup.    Ct.    893.  L.  E.  &  W.  R.  Co..  1  I.  C.  C.  594. 

'"Cases  note  supra  and,   Knud-  1  I.  C.  R.  7S7:  Lehigh  Valley  R. 

sen-Ferguson  Fruit  Co.  v.  Michi-  Co.  z\  Clark,  207  Fed.  717.  720. 
gan    Cent.    R.    Co.,    149    Fed.    973,    .  125   C.  C.  A.  235;  Note  77  below. 


§  207.]  OF  THE  Act  to  Regulate  Commerce.  331 

amendment  to  section  16,  awards  may  be  made."*' 

Of  these  provisions  for  award  of  damages,  it  has  been  said : 
"As  to  the  provisions  covering  reparation  cases,  Congress  is 
no  longer  dealing  with  those  matters  which  concern  the  practi- 
cal management  and  conduct  of  the  business  of  carriers  and  the 
regulation  thereof  in  futoro,  in  the  interests  of  the  public  gen- 
erally, but  is  conferring  a  private  right  of  action  upon  those 
who  have  suffered  actual  damage,  by  reason  of  such  carriers' 
violation  of  some  requirement  of  the  Act.  The  conferring  of 
such  right  of  action,  though  incident  to  its  power  to  regulate 
commerce,  is  not  a  regulation  thereof.  It  makes  redress  of  a 
private  injury  actually  suffered,  possible.  It  concerns  the  past 
and  not  the  future  conduct  of  the  carrier,  and,  though  this  right 
of  action  for  damages  is  qualified  by  making  it  dependent  in  cer- 
tain cases  upon  the  precedent  award  of  reparation  by  the  Com- 
mission, such  award  is  not  of  the  nature  of  the  administrative 
functions  conferred  on  that  body-"'"  In  reversing  the  Circuit 
Court  of  Appeals  the  Supreme  Court  without  discussing  the 
principles  quoted  found  that  the  report  of  the  Commission  con- 
formed to  the  Statute. 

General  damages  not  caused  by  a  violation  of  the  Act  can  not 
be  awarded  by  the  Commission."^  Misrouting  violates  the  laws 
and  damage  suft'ered  may  be  awarded  by  the  Commission.'^^ 

§  207.  Awards  of  Damages  for  Charg-ing-  an  Unjust  and 
Unreasonable  Rate. — The  statute  provides  that  charges  subject 

'"Rawson  v.  Newport  N.  &  M.  &    Co.,    15    I.    C.    C.    53;    damage 

V.  R.  Co.,  3  I.  C.   C.  266,  2  I.  C.  caused   by  delay;    Shiel   &  Co.  v. 

R.    626;    MacLoon   v.    Chicago    &  Illinois   Cent.  R.  Co.,  12  I.  C.   C. 

N.   W.    R.    Co.,    5    I.    C.    C.    8-1,    3  210,   breach    of  'contract;    LaSalle 

I.   C.  R.  711,  and  practice  of  the  &  B.  Co.  v.  Chicago  &  N.  W.  R. 

Commission   since.  Co.,  13  I.  C.  C.  610;  General  Elec- 

"  Lehigh      Valley      R.     Co.      v.  trie  Co.  v.  New  York  C.  &  H.  R. 

Clark,    207    Fed.    717,    723,    125    C.  R.  Co.,  14  I.  C.  C.  237,  breach  of 

C.  A.  235,  District  Court  affirmed  contract. 

except  as  to  a  portion  of  the  at-  "  McCaull-Dinsmore  Co.  v.  Chi- 

torney's    fees,   and    Circuit    Court  cago  G.  W.  Ry.   Co.,   14  I.   C.   C. 

of  Appeals  reversed.  Mills  v.  Le-  527;   Gus  Momsen  &  Co.  v.   Gila 

high    V.    R.    Co.,    238    U.    S.    473,  Valley,    G.    &   N.    Ry.    Co.,    14    I. 

59  L.  Ed.  — ,  35  Sup.  Ct.  888.  C.  C.  614;  Goodman  Mfg.  Co.  v. 

"Duncan  v.  Atchison,  T.  &  S.  Pennsylvania  R.   Co.,  26  I.  C.  C. 

F.  Ry.  Co.,  6  I.  C.  C.  85,  4  I.  C.  423;     Newman     Lumber     Co.     v. 

R.   385;   Carstens   Packing   Co.  v.  Mississippi    C.    R.    Co.,    26    L    C. 

Oregon  R.  &  N.  Co.,  17  L  C.  C.  C.   97;   Sec.   15   of  Act;   Sec.  402, 

3  25;  Blume  &  Co.  v.  Wells-Fargo  tost. 


332  Enforcement  by  the  Commission  [§  207. 

to  the  Act  must  be  "just  and  reasonable."^"  When  this  law  is 
violated  the  Commission  may  make  an  "award  of  damages." 
The  Circuit  Court  of  Appeals  held  that  before  such  an  award 
can  be  made  there  must  be  a  finding  that  the  rate  charged  was 
mireasonable  and  the  Commission  must  prescribe  "a  reasonable 
maximum  rate  to  be  observed  by  all,"  and  "an  order  of  repara- 
tion without  such  establishment  of  a  reasonable  maximum  rate 
is  beyond  the  power  of  the  Commission  and  void."^^  This  de- 
cision was  reversed  by  the  Supreme  Court  in  an  opinion  written 
by  Mr.  Justice  Lamar  who  said  :^- 

"But  however  desirable  it  may  have  been  to  deal  with  the  en- 
tire matter  at  one  time,  the  joinder  of  the  two  subjects  was  not 
jurisdictional.  There  was  no  such  necessary  connection  between 
the  two  as  to  make  the  order  of  reparation  void  because  of  the 
absence  of  a  concurrent  provision  establishing  a  rate  for  the 
future." 

When  a  rate  is  advanced  and  the  increased  rate  is  condemned 
the  shipper,  having  the  legal  right  to  have  transportation  at  a 
reasonable  rate,  is  clearly  entitled  to  an  award  of  damages  by 
way  of  reparation  measured  by  the  amoimt  paid  in  excess  of  the 
rate  found  to  be  unreasonable.^^  \\'here,  however,  complaint 
is  made  of  a  rate  already  in  existence  and  such  rate  is  declared 
unreasonable  at  the  date  of  the  order  of  the  Commission,  a 
different  question  is  presented.  At  what  exact  time  did 
the  rate  become  unreasonable?  Discussing  this  ques- 
tion in  the  Anadarko  Cotton  Oil  Co.  case,  ^■^  the  Com- 
mission stated  some  principle  to  which  it  has  since  adhered.     In 

'"Sec.   1   of  Act;   Sec.   339.  post.  Ct.    709;    Xicola,    Stone    &   Myers 

''Denver    &    R.    G.    R.    Co.    v.  Co.  v.  Louisville  &  N.  R.  Co..  14 

Baer  Bros.  Mer.  Co.,  187  Fed.  485,  I.     C.     C.     199;     Central    Yellowr 

109    C.    C.    A.    337;    Commercial  Pine    Assn.    v.    Illinois    Cent.    R. 

Club    of   Omaha   v.   A.    &   S.    Ry.  Co.,  10  I.  C.  C.  505;  Illinois  Cent. 

Co.,  27  I.  C.  C.  302,  314.  R.    Co.   v.   Interstate   Com.    Com., 

'^Baer   Bros.   Mer.   Co.   v.   Den-  206  U.   S.  441,  51  L.   Ed.  1128,  27 

ver    &    R.    G.    R.    Co.,   233    U.    S.  Sup.   Ct.  700;  Russe  &  Burges  v. 

479,   58   L.   Ed.   1055,   34   Sup.    Ct.  Interstate    Com.    Com.,    193    Fed. 

641.  678,  Op.   Com.  Ct.  No.  18,  p.  311; 

''Tift  V.   Southern   Ry.    Co.,   10  Chicago,  B.  &  Q.  R.  Co.  v.  Fein- 

I.    C.    C.    548;    Tift    V.    Southern  tuch,   191   Fed.   482,   112   C.   C.  A. 

Ry.    Co.,    138   Fed.   753;    Southern  126. 

Ry.    Co.    V.    Tift,    148    Fed.    1021;  '*  Anadarko    Cotton    Oil    Co.   v. 

Southern  Ry.   Co.  v.  Tift,  206  U.  Atchison.    T.    &    S.    F.    Ry.    Co., 

S.    428,    51    L.    Ed.    1124,    27    Sup.  20  I.   C.   C.  43,   49,   50,   51. 


§  207.]  OF  THE  Act  to  Regulate  Commerce.  333 

this  opinion  it  was  said:  "The  Commission  is  not  justified  in 
awarding  damages  in  any  case  except  on  a  basis  as  certain  and 
definite  in  law  and  in  fact  as  is  essential  to  the  support  of  a  final 
judgment  or  decree  requiring  the  payment  of  a  definite  sum  of 
money.  *  *  *  f  i-,g  tes^-  Qf  reasonableness  can  be  applied  only 
by  reference  to  and  upon  consideration  of  all  pertinent  facts, 
circumstances,  and  conditions  affecting  the  rate  in  effect  at  any 
particular  time.  *  *  *  A  rate  reasonable  in  view  of  the  cir- 
cumstances and  conditions  when  it  is  established  may  in  course 
of  time  become  unreasonable  by  virtue  of  changed  circumstances 
and  conditions.  It  is  manifestly  impractical  for  the  carriers  or 
the  Commission  in  such  a  case  to  determine  at  what  exact  time 
in  the  gradual  process  of  changes  the  rate  becomes  unreason- 
able." 

In  the  Burnham-Hanna-Munger  case,"^-^  no  reparation  was 
awarded  for  shipments  moving  prior  to  the  date  of  the  order, 
but  awards  were  made  for  shipments  moving  after  that  date 
and  during  the  time  the  order  was  enjoined.  After  two  years 
from  the  date  of  the  order  therein  advances  were  made  some  of 
which  were  held  to  increase  rates  to  a  point  where  they  were 
unreasonable.  In  determining  the  question  arising  in  an  in- 
vestigation of  these  increases  the  Commission  said :  "We  are 
now  prescribing  what  may  well  be  considered  a  new  rate  ad- 
justment," and  under  such  conditions  reparation  was  denied.*^ 

The  Commission  having  found  a  rate  unreasonable  from  the 
date  of  that  order,  reparation  should  be  allowed,  the  Commis- 
sion saying:  "In  every  case  like  this  the  Commission  must  fix 
the  point  of  time  at  wdiich  the  rate  becomes  unreasonable,  must 
determine  when  shippers  were  entitled,  and  when  carriers  ought 
to  have  established  the  rate  found  reasonable.  Manifestly  each 
case  must  depend  upon  its  own  facts,  and  the  complainant  must 
assume  the  burden  of  showing  that  the  rates  paid  have  been  un- 
reasonable-"^" 

''Burnham-Hanna-Munger  Dry  218   U.    S.    88,   54    L.    Ed.    946,    30 

Goods  Co.  V.  Chicago,  R.  I.  &  P.  Sup.  Ct.  651. 

Ry.    Co.,    14    I.    C.    C.    299,    order  *"  Re     Advances     in     Rates    be- 

enjoined   in    Chicago,   R.   I.   &   P.  tween    Mississippi    and    Missouri 

Ry.  Co.  V.  Interstate   Com.  Com.,  Rivers,   21   I.   C.   C.   546. 

171  Fed.  680,  and  the  Commission  ^  Re    Wool.    Hides    and   Pelts, 

sustained  in  Interstate  Com.  Com.  25    I.    C.    C.    675,    678;    National 

V.   Chicago,   R.    I.   &   P.   Ry.    Co.,  Wool    Growers   Assn.  v.   Oregon 

S.  L.  R.  Co.,  23  I.  C.  C.  151. 


334 


Enforcement  by  the  Commission 


[§  208. 


And  reparation  may  be  ordered  for  an  unreasonable  charge  al- 
though no  tariff  is  provided  therefor.^^ 

Damages  may  be  awarded  "where  a  carrier  collects  a  greater 
sum  on  an  intermediate  shipment  than  is  fixed  by  its  published 
tariffs.s9 

"Damages"  and  "Reparation"  have  been  used  interchangeably 
in  the  reports  of  the  Commission,  although  in  the  later  volumes 
the  word  damages  is  generally  adopted. 

§  208.  Awards  of  Damages  for  Unlawful  Discrimination. 
— Sections  two-"'  and  three ''i  of  the  Act  prohibit  unjust  dis- 
crimination and  undue  or  unreasonable  preference.  When  these 
sections  are  violated  "the  transgressing  carrier  is  liable  to  the 
person  or  persons  injured  thereby  for  the  full  amount  of  dam- 
ages sustained  in  consequence  of  any  such  violation. "^^ 

The  jurisdiction  of  the  Commission  to  make  on  award  of 
damages  in  discriminating  cases  was  at  one  time  denied  in  an 
opinion  by  a  bare  majority  of  the  commissioners,^^  but  the  courts 
having  decided  otherwise,  the  Commission  now  exercises  juris- 
diction over  claims  for  such  awards.^^  That  such  jurisdiction 
exists  can  not  now  be  doubted. ^^ 


*''  Laning-Harris  Coal  &  Grain 
Co.  V.  St.  Louis  &  S.  F.  R.  Co., 
15  I.  C.  C.  37;  Wheeler  Lumber, 
Bridge  &  Supply  Co.  v.  Astoria 
&  C.  R.  Co.,  20  L  C.  C.  10. 

*•  Memphis    Freight    Bureau    v. 
Kansas    C.    S.   Ry.    Co..    17    L    C. 
C.  90;  Hampton  Mnfg.  Co.  ' 
Dominion    Steamship    Co., 
C.    C.   660,   668. 

'"Post,  Sec.  345. 

""Post,  Sec.  346. 

"'Sec.  8  of  Act;   Sec.  382 

"^  Joynes  v.  Pennsylvania  R. 
Co.,  17  L  C.   C.  361. 

"'Hillsdale  Coal  &  Coke  Co.  v. 
Pennsylvania  R.  Co.,  23  L  C.  C. 
186. 

"'  Dissenting  Opinion  of  Com- 
missioner Lane  in  Joynes  v. 
Pennsylvania  R.  Co.,  17  L  C.  C. 
361,  ct  scq.;  Morrisdale  Coal  Co. 
V.  Pennsylvania  R.  Co.,  176  Fed. 
748;  Morrisdale  Coal  Co.  v.  Penn- 


.  Old 
27    L 


post. 


sylvania  R.  Co.,  183  Fed.  929,  106 
C.  C.  A.  269,  affirmed,  same  styled 
case,  230  U.  S.  304,  57  L.  Ed.  1474, 
33  Sup.  Ct.  938;  Baltimore  &  O. 
R.  Co.  V.  United  States  (Pitcairn 
Case),  215  U.  S.  481.  54  L.  Ed. 
292,  30  Sup.  Ct.  164;  Robinson  v. 
Baltimore  &  O.  R.  Co.,  222  U.  S. 
506,  56  L.  Ed.  288,  32  Sup.  Ct. 
114,  affirming  same  styled  case,  64 
W.  \'a.  406,  63  S.  E.  323.  Mr. 
Justice  Pitney  in  his  dissenting 
opinion  in  Pennsylvania  R.  Co. 
V.  International  Coal  Mining  Co., 
230  U.  S.  184,  57  L.  Ed.  1446,  33 
Sup.  Ct.  893,  914,  915,  appends  a 
list  of  cases  where  the  Commis- 
sion had  granted  reparation  for 
unlawful  charges  "because  dis- 
criminatory, irrespective  of 
whether  they  were  otherwise 
extortionate,"  because  "in  excess 
of  rate  afterward  voluntarily  es- 
tablished by  the  carrier"  "because 


§  208.]  OF  THE  Act  to  Regulate  Commerce.  335 

In  the  Coal  Car  Supply  cases  shippers  were  damaged  by  be- 
ing prevented  from  selling  coal  as  a  result  of  discrimination 
against  them  in  furnishing  cars.  This  discrimination  was  found 
illegal  and  the  carriers  ordered  to  desist  therefrom. ^^  Subse- 
quently, and  after  the  courts  had  held  that  the  Commission  had 
jurisdiction  so  to  do,  the  Commission  heard  evidence,  deter- 
mined the  amount  of  damages  suffered  and  entered  an  award 
therefor  in  favor  of  the  shippers. '•^'^ 

The  jurisdiction  is  settled,  but  the  difficult  question  is  one  of 
proof.  What  must  be  shown  to  establish  the  fact  of  damage? 
In  the  International  Coal  Mining  case,^^  damage  was  claimed 
because  the  defendant  carrier  had  rebated  part  of  the  published 
rate  to  a  competitor  of  the  plaintiff.  The  discrimination  result- 
ing from  a  less  charge  than  that  prescribed  in  a  legally  filed 
tariff,  no  prior  action  by  the  Commission  was  necessary  to  give 
the  courts  jurisdiction.  In  the  Supreme  Court,  the  shipper  "con- 
tended that  it  was  unnecessary  to  allege  or  prove  that  it  had 
suft'ered  any  injury,  for  the  reason  that,  as  a  matter  of  law,  it 
was  entitled  to  recover  as  damages  the  same  rate  per  ton  on  all 
its  shipments  as  had  been  rebated  to  any  other  person,  on  any 
of  his  tonnage  shipped  at  the  same  time  over  the  same  route. 
There  was  "neither  allegation  nor  proof  that  it  (plaintiff)  suf- 
fered any  injury."  What  plaintiff  there  claimed  was  its  right 
to  receive  the  same  rebate  which  had  been  paid  its  competitor. 
The  pleadings,  the  evidence  and  this  contention  must  not  be  lost 
sight  of  in  considering  the  opinion  of  a  majority  of  the  court  in 
denying  such  contention.  Delivering  the  opinion  of  the  court, 
Mr.  Justice  Lamar  said : 

of     error     in     routing,"     because  Com.,  193  Fed.  81;  Opinion  Com; 

"rates  held  unreasonable  per  se,"  Ct.  No.  31,  p.  275. 

"unreasonable       because      higher  °'  Hillsdale  Coal  &  Coke  Co.  v. 

than   obtainable  by  another   route,"  Pennsylvania  R.   Co.,   23   I.   C.   C. 

and    "because    of     exceeding     the  186.     See  also,   Hillsdale   Coal   & 

sum  of  the  locals,"  see  pages  242  Coke  Co.  v.  Pennsylvania  R.  Co., 

and  243  of  opinion.  229  Pa.  61,  78  Atl.  28. 

""Hillsdale  Coal  &  Coke  Co.  v.  "'Pennsylvania  R.  Co.  v.  Inter- 
Pennsylvania  R.  Co.,  19  I.  C.  C.  national  Coal  Mining  Co.,  230  U. 
356;  Jacoby  v.  Pennsylvania  R.  S.  184,  57  L.  Ed.  1446,  33  Sup.  Ct. 
Co.,  19  I.  C.  C.  392;  Bulah  Coal  893,  reversing  Pennsylvania  R. 
Co.  V.  Pennsylvania  R.  Co.,  20  I.  Co.  v.  International  Coal  Mining 
C.  C.  52,  order  sustained,  Penn-  Co.,  173  Fed.  1,  97,  C.  C.  A.  383. 
sylvania  R.  Co.  v.  Interstate  Com. 


336  Enforcement  by  the  Commission  [§  208. 

"Making  an  illegal  undercharge  to  one  shipper  did  not  license 
the  carrier  to  make  a  similiar  undercharge  to  other  shippers. 
*  *  *  The  measure  of  damages  was  the  pecuniary  loss  in- 
flicted on  the  plaintiff  as  the  result  of  the  rebate  paid.  These 
damages  might  be  the  same  as  the  rebate  or  less  than  the  rebate, 
or  many  times  greater  than  the  rebate ;  but  unless  they  were 
proved  they  could  not  be  recovered." 

The  case  was  remanded  for  a  new  trial,  and  all  that  the  opin- 
ion holds  is  that  a  plaintiff's  rights  are  not  measured  by  the 
benefits  another  shipper  receives,  but  are  measured  by  the  actual 
damages  he  suffers,  proof  of  which  damages  must  be  made  as 
in  other  suits  therefor. 

The  Commission  held  that  rates  on  tobacco  for  export  were 
discriminatory  in  violation  of  the  Act,  and  entered  an  order  re- 
quiring the  carriers  to  desist  from  such  discrimination,  but  made 
no  finding  that  the  rate  was  unreasonable  in  violation  of  section 
one.^'*  On  a  supplemental  hearing,  complainants  sought  to  re- 
cover an  award  of  damages.  On  such  hearing  it  appeared  that 
the  complainants  shipped  to  foreign  ports  other  than  those  to 
which  the  shippers  in  whose  favor  the  discrimination  existed 
shipped,  and  no  evidence  of  damages  was  offered.  It  was  con- 
tended that  an  award  should  be  made  of  the  diff'erence  between 
the  rate  paid  by  complainants  and  that  paid  by  other  shippers 
shipping  to  points  to  which  complainants  made  no  shipments. 
The  Commission  denied  reparation,  but  its  opinion  should  be 
construed  as  limited  by  the  facts  of  the  case.^"'^  In  a  later  case 
involving  the  same  principle,  the  Commission  stated  the  rule  as 
follows : 

"Reparation  may  properly  be  awarded  when  a  discriminatory 
freight  rate  has  been  exacted,  but  it  does  not  necessarily  follow 
that  because  a  rate  is  found  to  be  unjustly  discriminatory  and 
unduly  prejudicial,  that  the  complaining  parties  are  the  ones 
who  have  been  damaged  through  its  exaction. "^*^i 

That  it  may  be  difficult  to  prove  damages  is  no  reason  far  de- 


""New  Orleans  Board  of  Trade  "'Curry    &   Whyte    Co.   v.    Du- 

V.   Illinois    Cent.   R.   Co.,   23   I.    C.  luth   &   I.   R.    R.    Co.,   30   I.    C.   C. 

C.  465.  1,    14.      See    also    Becker   r.    Pere 

'""New  Orleans  Board  of  Trade  Marquette  R.  Co.,  28  I.  C.  C.  645, 

V.    Illinois   Cent.   R.   Co..   29   I.   C.  657. 
C.  32. 


§  208.]  OF  THE  Act  to  Regulate  Commerce.  337 

nyiiig  the  right  thereto  if  the  damages  are  reasonably  certain 
and  can  be  proved  with  reasonable  exactitude. ^"- 

In  awarding  general  damages,  the  courts  meet  with  the  same 
difficulty  and  the  rules  for  fixing  other  kinds  of  damages  should 
apply  when  a  shipper  is  damaged  by  a  rate  illegally  discriminatory 
against  him.  The  meeker  case  ^'^^^  is  decisive  only  of  the  ques- 
tion of  the  priuia  facie  efifect  of  an  order  of  the  Commission. 
In  that  case  the  Commission  had  awarded  damages  both  for  a 
violation  of  section  one  and  of  section  three  of  the  act.  The 
carrier  being  sued  presented  no  testimony  but  relied  on  the  claim 
that  the  report  of  the  Commission  showed  that  the  amount  of 
the  award  corresponded  in  one  instance  to  the  amount  of  the  re- 
bate and  in  the  other  to  the  amount  of  the  overcharge,  and  that 
therefore  the  Commission  had  applied  an  erroneous  and  inadmis- 
sible measure  of  damages.  To  this  contention  the  Supreme 
Court  replied :  "The  Commission  was  atithorized  and  required 
by  section  8  of  the  act  to  regulate  commerce  to  award  the  full 
amount  of  damages  sustained,  and  that,  of  course,  was  to  be  de- 
termined from  the  evidence.  If  it  showed  that  the  damage  cor- 
responded to  the  rebate  in  one  instance  and  to  the  overcharge  in 
the  other,  the  claimant  was  entitled  to  an  award  upon  that  basis. 
The  case  of  Pennsylvania  R.  Co.  v.  International  Coal  IMin.  Co., 
230  U.  S.  184,  57  L.  Ed.  1446,  2>2>  Sup.  Ct.  Rep.  893,  is  cited  as 
holding  otherwise,  but  it  does  not  do  so.  There  a  shipper,  with- 
out proving  that  he  sustained  any  damage,  sought  to  recover 
from  a  carrier  for  giving  a  rebate  to  another  shipper,  and  this 
court,  referring  to  section  8,  said  (p.  203)  :  'The  measure  of 
damages  was  the  pecuniary  loss  inflicted  on  the  plaintiff  as  the 
result  of  the  rebate  paid.  Those  damages  might  be  the  same  as 
the  rebate,  or  less  than  the  rebate,  or  inany  times  greater  than 

'""Weinman    v.    De   Palma,   232  &    Transportation    Co.,    220    Fed. 

U.  S.  571,  58  L.  Ed.  733,  34  Sup.  14;   Darnell-Taenzer   Lumber   Co. 

Ct.  370.  V.    So.    Pac.     Co.,    221    Fed.    890, 

""  Meeker   v.    Lehigh   Valley   R.  C.   C.  A.  ,  reversing  190 

Co.,  21  I.  C.  C.  129,  23  L  C.  C.  Fed.  659.  As  misconstruing  the 
480,  211  Fed.  785,  128  C.  C.  A.  International  Coal  Case  supra,  see 
311,  236  U.  S.  412.  434,  59  L.  Ed.  Lehigh  V.  R.  Co.  v.  Clark.  207 
,  35  Sup.  Ct.  328,  337.  Fed.  717,  125  C.  C.  A.  235,  re- 
See  also  Mills  V.  Lehigh  V.  versed  in  Mills  Case  supra;  Le- 
R.   Co..  238  U.   S.  473,  59   L.   Ed.  high  V.   R.  Co.  v.  American  Hay 

,  35   Sup.   Ct.  888;   So.   Pac.  Co.,   219    Fed.   539,   C.    C.   A. 

Co.    V.    Goldfield    Consol.    Milling  . 


338  Enforcement  by  the;  Commission  [§  209. 

the  rebate;  but  unless  they  were  proved,  they  could  not  be  re- 
covered. Whatever  they  were  they  could  be  recovered.'  There 
is  nothing  in  either  report  of  the  Commission  which  is  in  con- 
flict with  what  was  said  in  that  case.  On  the  contrary,  the  plain 
import  of  the  findings  is  that  the  amount  awarded  represent  the 
claimant's  actual  pecuniary  loss ;  and,  in  view  of  the  recital  that 
the  findings  were  based  upon  the  evidence  adduced,  it  must  be 
presumed,  there  being  no  showing  to  the  contrary,  that  they  were 
justified  by  it." 

In  the  case  of  Mills  v.  Lehigh  A^alley  R.  Co.,  note  supra,  the 
Commission  found  that  the  complainant  was  entitled  to  a  stated 
amount  "as  reparation. "i*'"*  It  was  contended  that  such  a  find- 
ing was  not  equivalent  to  a  finding  that  he  was  damaged.  Of  this 
contention  the  Court  said :  "What  the  Commission  decided  was 
that  the  shippers  were  entitled  to  reparation ;  that  is,  to  be  made* 
whole,— to  be  compensated  for  a  loss  because  of  an  illegal  and 
unreasonable  exaction ;  and  the  amount  which  they  stated  as  the 
sum  to  be  paid  *as  reparation'  on  the  specified  shipments  was 
the  amount  which  they  found  necessary  to  accomplish  the  rep- 
aration,— to  afi:'ord  the  compensation.  The  statute  was  not  con- 
cerned with  mere  forms  of  expression,  and  in  view  of  the  de- 
cision that  a  finding  of  the  ultimate  fact  of  the  amount  of  dam- 
age is  enough  to  give  the  order  of  the  Commission  effect  as 
prima  facie  evidence,  we  think  that  the  trial  court  did  not  err 
in  its  ruling.  The  statutory  provision  merely  established  a  rule 
of  evidence.  It  leaves  every  opportunity  to  the  defendant  to 
contest  the  claim.  But  when  the  Commission  has  found  that 
there  was  damage  to  a  specified  extent,  prima  facie  the  damage 
is  shown ;  and,  according  to  the  fair  import  of  its  decision,  the 
Commission  did  find  the  amount  of  damage  in  this  case." 

§  209.  Damages  under  the  Fourth  Section. — Under  sec- 
tion four  of  the  Act,  as  has  been  shown, ^*^'°  relief  may  be  granted 
from  the  long  and  short  haul  provision,  and  the  Commission  has 
granted  relief  from  the  provision  requiring  that  the  rate  for  the 
through  routes-shall  not  exceed  the  aggregate  of  the  intermediate 
rates. 

Under  these  circumstances,  where  the  carrier  has  followed  the 


'""Naylor    &    Co.   v.   Lehigh    V.  ^"^intc     Sees.     154.     155;     post. 

R.    Co.,    15    I.    C.    C.    9,    IS    I.    C.       Section  349. 
C.  624. 


§  210.]  OF  THE  Act  to  Regulate  Commerce.  339 

statute  and  applied  for  relief,  the  existing  rate  is  the  legal  rate 
until  adjudged  otherwise  by  the  Commission  after  hearing.  Un- 
til such  adjudication  the  carrier  has  not  "done  any  act,  matter 
or  thing  *  '^  '•-  prohibited  or  declared  to  be  unlawful,"  nor 
has  there  been  an  omission  to  "do  any  act,  matter  or  thing"  re- 
quired to  be  done.  Speaking  to  the  question  and  of  the  applica- 
tions filed  for  relief  under  the  section,  the  Commission  said : 

"Under  this  provision  over  5,000  applications  were  filed  be- 
fore the  date  fixed,  and  these  two  applications  were  among  that 
number.  Xow,  we  think  that  it  plainly  appears,  from  the  action 
of  Congress  in  providing  that  no  carrier  should  be  proceeded 
against  for  a  violation  of  the  fourth  section  until  its  application 
had  been  acted  upon,  that  it  Avas  the  intent  of  Congress  to  say 
that  matters  should  be  left  /";;  statu  quo  until  that  time.  It  would 
be  inconsistent  to  grant  reparation  for  a  disregard  of  the  rule  of 
the  fourth  section  during  that  period  within  which  the  law-mak- 
ing authority  had  expressly  sanctioned  existence  of  such  disre- 
gard. 

"Without  undertaking,  therefore,  to  lay  down  any  rule  as  to 
the  granting  of  reparation  for  violations  of  the  fourth  section, 
we  hold  that  no  damages  can  be  given  up  to  the  time  when  the 
Commission  passes  upon  these  fourth  section  applications,  un- 
less, possibly,  a  case  is  made  out  under  the  third  section,  which 
might  carry  with  it  an  award  of  damages,  or  unless  under  the 
first  section  the  rate  to  the  intermediate  point  has  been  found 
unreasonable."  ^'^'^ 

§  210.  Damages  for  Misrouting-. — Where  two  through 
routes  exist  the  shipper  "subject  to  such  reasonable  exceptions 
and  regulations  as  the  Interstate  Commerce  Commission  shall 
from  time  to  time  prescribe,  shall  have  the  right  to  designate  in 
writing  by  which  of  such  through  routes  such  property  shall  be 
transported  to  destination,  and  it  shall  thereupon  be  the  duty 
of  the  initial  carrier  to  route  said  property  and  issue  a  through 
bill  of  lading  therefor  as  so  directed,  and  to  transport  said  prop- 
erty over  its  own  line  or  lines  and  deliver  the  same  to  a  connect- 
ing line  or  lines  according  to  such  through  route,  and  it  shall 
be  the  duty  of  each  of  said  connecting  carriers  to  receive  said 

""Appalachian    Lumber    Co.    ?/.       Clothing  Co.  v.  Chicago  &  N.  W. 
Louisville   &  N.   R.   Co.,   25   L   C.       Ry.  Co.,  26  L  C.  C.  628,  630. 
C.  193,  197,  followed  in  Jonesville 


340  Enforcemext  by  the  Commission  [§  210. 

property  and  transport  it  over  the  said  line  or  lines  and  deliver 
the  same  to  the  next  succeeding  carrier  or  consignee  according 
to  the  routing  instructions  in  said  bill  of  lading:  Provided,  how- 
ever, that  the  shipper  shall  in  all  instances  have  the  right  to  de- 
termine, where  competing  lines  of  railroad  constitute  portions 
of  a  through  line  or  route,  over  which  of  said  competing  lines 
so  constituting  a  portion  of  said  through  line  or  route  his  freight 
shall  be  transported."  ^^" 

Under  the  authority  granted  by  the  statute,  the  Commission 
has  passed  certain  conference  rulings  in  which  it  is  stated  that 
it  has  exclusive  jurisdiction  over  claims  for  damages  arising 
from  the  misrouting  of  freight. ^^^^  Carriers  must  not  disregard 
instructions  of  shippers  as  to  intermediate  routing,  except  when 
the  tariff  of  the  initial  line  reserves  the  right  to  the  carrier  to  dic- 
tate intermediate  routing.  When  such  reservation  is  made  in  the 
tariff' :  '( 1  )  where  all-rail  rates  and  rail-and-water  rates  are 
available  the  agent  of  the  carrier  must  have  the  shipper  designate 
which  of  the  two  he  wishes  to  use;  and  (2)  the  agent  must  not 
route  shipment  via  a  route  which  will  be  more  expensive  to  the 
shipper  than  the  one  desired  by  him,  or  which  does  not  furnish 
substantially  as  good  and  expeditious  service. 

In  the  absence  of  specific  routing  which  the  carrier  is  willing 
to  observe,  the  routing  n:ust  be  via  the  cheapest  reasonable  route 
of  the  class  designated  by  the  shipper.  The  initial  carrier  must 
protect  the  routing. ^'"^ 

When  a  bill  of  lading  is  presented  by  a  shipper  showing  both 
routing  and  rate,  and  the  rate  is  not  available  by  the  prescribed 
routing,  a  routing  applicable  to  the  rate  must  be  adopted. i^*^ 

When  a  carrier  routes  by  a  higher  interstate  rate  and  there  is 
available  a  lower  reasonable  intrastate  rate,  damages  for  the 
dift'erence  between  the  lower  and  higher  rate  may  be  allowed, 
unless  the  route  over  the  interstate  line  is  prescribed  by  the 
shipper.^ii 

"'Sec.  15  of  Act;  Sec.  402,  post.  cago   G.  W.  Ry.   Co..  14  I.   C.   C. 

"'Conf.   Ruling  286.  527;   Gus   Momsen   &   Co.  v.   Gila 

""  Conf.  Rulings  214,  91,  93,  140,  Valley  G.  &  N.   Ry.   Co..  14  I.  C. 

190,   192,   198,   205,   214d,   286.   316.  C.    614;    Goodman    Mn/g.    Co.     r. 

""  Con.  Ruling  286f.  Pennsylvania  R.   Co..  26  I.   C.   C. 

"'^  Lathrop  Lumber  Co.  v.  Ala-  423;  Newman  Lumber  Co.  v.  Mis- 

bama   G.    S.    R.    Co.,   27    L    C.    C.  sissippi  C.  R.  Co.,  26  L  C.  C.  97; 

250;  Conf.  Ruling  140.     See  also:  Sec.    15   of   Act;    Sec.   402,   post. 
McCaull-Dinsmore      Co.     v.     Chi- 


§  211.] 


OF  THE  Act  to  Regulate  Commerce. 


341 


§  211.  Damages — General  Statement. — Carriers  may  vol- 
untarily make  rates  lower  than  they  could  be  compelled  to  make 
them,  but  the  Commission  will  not  award  reparation  on  the  basis 
of  a  rate  lower  than  that  which  it  would  prescribe,  even  though 
the  shipper  and  carrier  may  agree  thereto. ^^^ 

Where  complainant  operates  an  industrial  road  which  is  a 
plant  facility,  originating  shipments  and  receiving  an  allowance 
from  the  carrier  therefor  or  participating  in  the  joint  rate  under 
which  shipments  moved,  reparation  has  been  denied  by  the  Com- 
mission.^^^  If,  however,  the  industrial  railroad  was  legally  en- 
titled to  an  allowance,  and  some  may  be,  and,^^^  if  the  allowance 
did  not  exceed  a  reasonable  compensation,  it  would  seem  that 
where  the  rate,  other  than  the  portion  allowed  the  industrial  rail- 
road, is  unreasonable,  that  reparation  should  be  awarded. 

§  212.  Damages  for  Misquoting  a  Rate, — Prior  to  the 
Amendment  of  1910  it  was  held  that  should  a  carrier's  agent 
make  a  mistake  and  cjuote  a  wrong  rate,  the  shipper  receiving 
such  quotation  of  a  rate  must  nevertheless  pay  the  correct  tariff 
rate  even  though  he  suffer  severe  loss  thereby. ^^^  Nor  does  the 
fact  that  there  was  no  rate  on  file  change  the  rule.^^^     Discuss- 


'"^  Pacific  Elevator  Co.  v.  Chi- 
cago, M.  &  St.  P.  R.  Co.,  17  I.  C. 
C.    373,    374. 

'"^  Kaul  Lumber  Co.  v.  Central 
of  Ga.  Ry.  Co.,  20  I.  C.  C.  450; 
Tap  Line  Case,  23  L  C.  C.  277, 
549;  Commercial  Club  of  Omaha 
V.  Anderson  &  Saline  River  Ry. 
Co.,  27  L  C.  C.  302,  324.  The 
Kaul  Case  is  hardly  sustained  by 
the  Tap  Line  Cases;  United  States 
V.  Louisiana  &  Pac.  Ry.  Co.,  234 
U.  S.  1,  58  L.  Ed.  1185,  34  Sup. 
Ct.  74]. 

"*Sec.    171,    ante. 

'"Poor  V.  Chicago,  B.  &  Q.  R. 
Co.,  12  L  C.  C.  418,  421,  422; 
Tex.  &  Pac.  Ry.  Co.  v.  Mugg,  202 
U.  S.  242,  50  L.  Ed.  1011,  2G  Sup. 
Ct.  628;  Gulf  C.  &  S.  F.  R.  Co.  v. 
Hefley,  158  U.  S.  98,  39  L.  Ed. 
910,  15  Sup.  Ct.  802;  Suffern, 
Hunt  &  Co.  V.  Indiana,  D.  &.  W. 
Ry.  Co.,  7  L  C.  C.  255,  278;  Hous- 


ton &  T.  C.  R.  Co.  V.  Dumas,  43 
S.  W.  609;  Chicago,  R.  L  &  P. 
Ry.  Co.  V.  Hubbell,  54  Kans.  232, 
38  Pac.  266,  5  L  C.  R.  241;  Pond- 
Decker  Lumber  Co.  v.  Spencer, 
86  Fed.  846,  30  C.  C.  A.  430;  Mo- 
bile &  O.  R.  Co.  V.  Dismukes,  94 
Ala.  131,  10  So.  289,  4  L  C.  R. 
200;  Atchison,  T.  &  S.  F.  Ry.  Co. 
V.  Holmes,  18  Okla.  92,  90  Pac.  22. 
New  York  C.  &  H.  R.  R.  Co.  v. 
United  States,  212  U.  S.  500,  53 
L.  Ed.  624,  29  Sup.  Ct.  309;  Illi- 
nois Cent.  R.  Co.  v.  Henderson 
Elevator  Co.,  226  U.  S.  441,  57  L. 
Ed.  290,  33  Sup.  Ct.  176,  revers- 
ing same  styled  case,  138  Ky.  220, 
127   S.  W.  779. 

""  Kansas  City  S.  R.  Co.  v.  Al- 
bers  Com.  Co.,  223  U.  S.  573,  56 
L.  Ed.  556,  32  Sup.  Ct.  316,  re- 
versing same  styled  case,  79  Kan. 
59,  99  Pac.  819. 


342  Enforcement  by  the  Commission  [§  212. 

ing  this  subject,  the  Commission,  in  its  twenty-second  Annual 
Report,  pp.  16,  17,  showed  the  hardship  of  the  rule  and  said: 

"The  Commission  feels  that  to  require  the  shipper  to  ascer- 
tain for  himself  at  his  peril  the  rate  imposes  upon  him  an  undue 
burden.  The  railway  should  know  what  its  established  charges 
are,  and  may  be  fairly  required  to  state  in  writing,  when  a 
\vritten  request  is  made  by  the  shipper,  the  rate  which  it  has 
published  and  maintains  in  force.  We  call  special  attention  to 
this  matter  as  one  of  immediate  and  general  concern,  which  dis- 
closes the  need  of  an  appropriate  remedy,  and  urgently  request 
that  a  suitable  measure  be  promptly  enacted." 

In  the  first  edition  hereof,  referring  to  the  quotation  above,  it 
was  said : 

It  is  undoubtedly  true  that  shippers  ordinarily  do  not  know, 
and  it  would  sometimes  take  an  expert  to  find  out,  what  a  par- 
ticular rate  is,  and,  therefore,  reliance  must  be  had  on  the  infor- 
mation furnished  by  the  agents  of  the  carriers.  The  Commission 
points  out  the  evil  but  suggests  no  remedy.  It  would  probably 
be  an  effective  remedy  to  allow  the  Commission  to  award  repa- 
ration in  such  cases  as  it  might  find  were  based  upon  an  honest 
mistake  of  the  carrier.  The  Commission  would  be  able  to  pre- 
vent the  evils  which  Air.  Commissioner  Harlan  points  out  in  the 
Poor  case  supra;  and,  if  necessary'  to  prevent  discrimination,  the 
rate  mistakenly  given  might  be  open  to  all  who  ship  contempo- 
raneously with  the  shipper  who  relied  on  the  misquoted  rate. 

By  the  Amendment  of  1910,^1'^  it  was  made  the  duty  of  the 
carrier  "after  written  request"  to  give  a  statement  of  the  cor- 
rect rate,  and  should  there  be  a  refusal  to  comply  with  a  request 
properly  made,  or  should  there  be  given  a  WTong  rate,  and  "if 
the  person  or  company  making  such  request  sufifers  damage  in 
consequence  of  such  refusal  or  omission,  or  in  consequence  of 
the  misstatement  of  the  rate,"  the  carrier  is  made  liable  by  the 
statute  to  pay  a  penalty  of  two  hundred  and  fifty  dollars,  which 
penalty  shall  accrue  to  the  United  States.  As  such  refusal,  omis- 
sion or  misstatement  would  come  within  the  provisions  of  section 
eight  of  the  Act,  the  shipper  could  recover  and  the  Commission 
or  a  court  could  award  "the  full  amount  of  damages  sustained 
in  consequence  of  any  such  violations." 

This  statement  is  not  in  conflict  with  the  decisions  of  the  Su- 

'"Act   June    IS,    1910;    Sec.   368,    post. 


§  213.]  OF  THE  Act  to  Regulate  Commerce.  343 

preme  Court  in  the  Albers  Commission  case  and  the  Henderson 
Elevator  case,  cited  note  supra.  In  the  Albers  Commission  Co. 
case  the  court  was  careful  to  limit  its  opinion  to  the  law  in  effect 
prior  to  1910,  and  at  page  598  of  the  opinion  it  was  said:  "To 
avoid  any  misapprehension  in  respect  to  the  character  of  the 
liability  sought  to  be  enforced  in  this  case,  we  deem  it  well  to 
repeat  that  there  was  no  claim  of  any  right  to  reparation  or 
damages  under  the  Interstate  Commerce  Act,  *  *  '^  but  only 
an  attempt  to  enforce  a  supposed  liability  for  a  breach  of  the 
special  agreement."  A  like  limitation  could  be  stated  as  to  the 
Henderson  Elevator  case.  The  Commission  in  a  case  decided 
in  1913,  refused  reparation,  but  in  that  case  there  was  no  appli- 
cation made  and  refused  and  no  misstatement  under  the  amended 
law.iis 

§  213.  Damages,  to  Whom  Paid. — Reparation  is  paid  to 
him  who  pays  the  illegal  advance  or  exaction.  For  the  wrong 
of  being  required  to  pay  that  which  is  unlawful  under  the  Act, 
he  who  makes  such  payment  has  suffered  legal  damage  to  the 
extent  of  the  amount  paid  in  excess  of  the  unlawful  rate  or  to 
the  extent  that  he  is  damaged  by  an  unlawful  preference  to  an- 
other. 

It  is  the  person  who  sustains  damages  who  is  given  the  right 
to  an  award  by  way  of  reparation,  and  that  the  injured  owner 
may  add  to  the  price  of  his  commodity  the  amount  of  his  dam- 
ages can  not  relieve  the  carrier  causing  the  damage  and  keeping 
the  unlawful  exaction  of  an  excessive  rate.  For,  as  said  by 
Mr.  Commissioner  Prouty:^^^ 

"If  complainants  were  obliged  to  follow  every  transaction  to 
its  ultimate  result  and  to  trace  out  the  exact  commercial  effect 
of  the  freight  rate  paid,  it  would  never  be  possible  to  show  dam- 
ages with  sufficient  accuracy  to  justify  giving  them.  Certainly 
these  defendants  are  not  entitled  to  this  money  which  they  have 
taken  from  the  complainants,  and  they  ought  not  to  be  heard  to 
say  that  they  should  not  be  required  to  refund  this  amount  be- 
cause the  complainants  themselves  may  have  obtained  some  por- 


""  Franke   Grain   Co.   v.   Illinois       Louis  S.  W.  Ry.  Co.  v.  Lewellen, 
Cent.  R.  Co.,  27  I.  C.  C.  625.     As       193  Fed.  540. 

supporting      the      principle      an-  ""Burgess    v.    Transcontinental 

nounced     in     the     text.      See     St.       Freight   Bureau,   13   I.   C.   C.  668, 

679,    680. 


344  Enforcement  by  the:  Commission  [§  213. 

tion  of  this  sum  from  the  consumer  of  the  commodity  trans- 
ported." 

This  statement  of  the  Commission  applies  with  more  force 
to  cases  where  the  rate  is  unreasonable  than  to  discrimination 
cases  where  there  must  be  proof  of  damages  by  the  shipper  who 
suffers  the  loss.^-" 

The  manufacturer  who  sells  his  produce  f.  o.  b.  his  plant  pays 
no  freight  thereon,  although  the  value  of  his  product  may  be  af- 
fected by  the  rate  of  carriage  from  his  plant  to  the  market.  His 
damage,  if  any,  however,  is  not  subject  of  ascertainment.  When 
he  sells  free  on  board  cars  at  his  place  of  business,  the  title  passes 
upon  delivery  of  the  commodity  to  the  carrier.  The  purchaser 
then  owns  the  commodity  and  must  pay  the  transportation 
charges  thereon  to  whatever  place  he  may  direct  shipment. 
Should  there  be  loss  or  injury,  the  manufacturer  would  not  suf- 
fer, but  such  loss  or  injury  must  be  adjusted  between  the  owner 
and  the  carrier.  It  may  be  that  the  higher  rate  affects  the  selling 
price  at  the  point  of  manufacture,  but  to  what  extent  can  not 
be  definitely  ascertained.  Besides,  the  manufacturer  does  not 
fix  his  selling  price  according*  to  the  final  destination  of  the  com- 
modity. He  frequently  does  not  know  where  the  purchaser  will 
send  the  goods  when  the  purchase  is  made.  The  purchaser  may 
decide  to  use  the  commodity  at  the  point  of  manufacture,  or  ship 
to  some  place  where  the  illegal  rate  does  not  apply.  These  and 
other  considerations  make  it  manifest  that  the  legal  injury  is  suf- 
fered by  the  person  who  pays  for  the  carriage.  This  does  not 
mean  the  man  who  actually  hands  the  money  or  check  to  the 
carrier.  It  means  the  one  who  owns  the  commodity  while  in 
transit  and  who  has  undertaken  to  deliver  it  at  a  point  requir- 
ing its  shipment  over  the  lines  of  the  carrier  who  collects  the 
unlawful  charge.  Frequently  a  manufacturer  will  sell  his  goods 
delivered  at  a  particular  point,  but  allow  the  consignee  to  pay 
the  freight  thereto,  deducting  the  amount  thereof  from  the  pur- 
chase price  of  the  goods.  In  such  a  case,  the  manufacturer  has 
paid  the  freight  and  is  entitled  to  recover  the  overcharge.  The 
manufacturer  may  add  the  freight  charges  to  the  manufacturing 
cost,  the  jobber  and  the  retailer  may  add  not  only  such  charges 
but  a  profit  thereon  when  they  sell,  and  in  the  end  the  consumer 
"pays  the   freight."   but   it   would  be   impracticable   to   trace  an 

""  Sec.  208,  supra. 


§  214.]  OF  THE  Act  to  Regulate  Commerce.  345 

overcharge  to  the  consumer  who  never  could  niake  proof  enti- 
tling him  to  a  recovery.  The  law  will  not  attempt  to  follow 
these  speculations,  but  will  let  the  carrier  repay  to  the  man,  who 
pays  for  the  transportation  of  his  property,  all  charges  above 
what  such  shipper  is  legally  bound  to  pay.^-^ 

The  Commission  declined  to  award  reparation  before  a  com- 
plainant had  paid  the  lawful  rate.^-- 

The  right  to  recover  damages  under  the  Act  may  be  as- 
signed,^-^  but  by  conference  ruling  362  the  Commission  said : 
"In  awarding  reparation  the  Commission  will  recognize  an  as- 
signment by  a  consignor  to  a  consignee  or  by  a  consignee  to  a 
consignor,  but  Avill  not  recognize  an  assignment  to  a  stranger 
to  the  transportation  records." 

§  214.  Damages,  by  Whom  Paid. — Where  the  illegal  rate 
is  a  joint  rate  over  a  through  route  consisting  of  several  carriers, 
the  question  arises  as  to  what  carrier  or  carriers  must  pay  the 
reparation,  and  as  to  whether  the  liability  is  joint  or  several; 
that  is,  is  each  carrier  jointly  and  severally  liable  for  all  the  il- 
legal rate,  or  is  each  carrier  liable  for  only  the  proportion  of 
the  illegal  charge  received  by  it?  The  charging  of  an  illegal 
rate  is  a  tort  and  all  participants  in  such  illegal  act  are  joint  tort 
feasors,  and  as  such,  each  carrier  is  jointly  and  severally  liable. 
Where,  as  was  found  to  be  a  fact  in  the  Tift  case,  supra,  an  il- 
legal advance  was  made  by  a  combination  of  carriers  by  con- 
certed and  concurrent  action  in  violation  of  the  Sherman  Anti- 
Trust  law,  it  would  seem  that  each  and  all  carriers  who  partici- 
pated in  the  action  by  which  the  advance  was  made  would  be 
joint  tort   feasors  and  liable  to  any  one  who  suffered  damages 

'''  Commercial    Club    of   Omaha  Co.  v.  Chicago  &  N.  W.  Ry.  Co., 

V.  Anderson    &   S.    R.   R.    Co.,   27  22  I.   C.  C.  346;   Doming  Lumber 

I.  C.  C.  302,  323;  Nicola,  Stone  &  Co.   v.    Southern    Pac.    Co.,   24    I. 

Meyers  Co.  v.  Louisville  &  N.  R.  C.  C.  598;  Sondheimer  v.  Illinois 

Co.,  14  L  C.  C.  199,  208;  Sunny-  Cent.  R.  Co.,  20  L  C.  C.  606. 
side   Coal   Mining   Co.  z'.   Denver  '"^Rosenblatt   v.    Chicago    &   N. 

&  R.   G.   R.   Co.,   19   L   C.   C.  20;  W.   Ry.  Co.,  18  L   C.  C.  261. 
Mountain  Ice  Co.  v.  Delaware,  L.  ^"'  Edmunds  v.  Illinois  Cent.  R. 

&   W.    R.    Co..    21    I.    C.    C.    596;  Co.,  80  Fed.  78;  Jubitz,  Assignee, 

Baker  Mnfg.  Co.  v.  Chicago  &  N.  v.  Southern  Pac.  Co.,  27  I.   C.  C. 

W.  R.  Co.,  21  I.  C.  C.  605;  Caro-  44.     The  Commission  declined  to 

lina     Portland     Cement     Co.     v.  express  an  opinion  on  this  point, 

Chesapeake   &  O.   Ry.   Co.,  21    I.  O'Brien   Com.   Co.  v.   Chicago    & 

C.  C.    533;    Lamb,    McGregor    S;  N.  W.  Ry.  Co.,  20  I.  C.  C.  68. 


346  Enforcement  by  the  Commission  [§  215. 

by  such  illegal  advance.  The  Commission  does  not  fully  agree 
with  this  proposition,  and  in  the  Nicola,  Stone  and  Myers  case, 
announced  the  rule  as  follows : 

"The  complainants  contend  that  the  defendant  carriers  who 
concurred  in  establishing  the  unlawful  advance  in  the  rates  un- 
der consideration  are  jointly  and  severally  liable  for  all  the 
damages  resulting  therefrom,  whether  or  not  participating  in 
the  particular  rate  from  which  the  individual  overcharge  re- 
sulted. We  can  not  concur  in  so  broad  a 'view  of  the  liability 
of  the  defendants.  We  do  not  think  those  carriers  who  received 
no  part  of  the  charges  and  who  did  not  participate  in  the  move- 
ment of  the  commodity  should  be  liable  to  refund  the  whole  or 
any  part  of  the  rate  for  the  movement  of  a  shipment  in  which 
they  did  not  participate.  We  think  that  the  liability  is  restricted 
to  those  carriers  who  participated  in  the  transportation  of  the 
lumber  via  their  respective  routes  over  which  the  several  ship- 
ments moved,  and  who  shared  in  the  transportation  charges 
therefor,  and  that  such  carriers  are  jointly  and  severally  liable 
to  the  persons  found  to  be  entitled  to  the  refund."  ^-^ 

§  215.  Damage — Protest  Unnecessary. — It  is  not  necessary 
that  a  rate  be  paid  under  protest  in  order  to  enable  a  shipper 
paying  it  to  recover  the  excessive  and  unlawful  portion  thereof. 
This  is  true  because  the  law  requires  no  useless  thing,  and  in 
no  case  where  a  rate  is  fixed  in  the  schedules  filed  according  to 
law,  would  protest  avail  anything.  The  carrier  could  not,  if  it 
wished,  yield  to  the  protest  and  charge  less  than  the  tariff  rates. 
This  question  has  been  before  the  Commission  and  has  been  de- 
cided in  harmony  with  the  principles  stated.^-" 

The  holding  of  the  Commission  is  not  in  conflict  with  the  deci- 

^' Osborne  v.  Chicago  &  N.  W.  cago  &  X.  \V.   Ry.   Co..  21  I.   C. 

Ry.    Co.,    48    Fed.    49;    Interstate  C.    20. 

Com.  Com.  v.  Louisville  &  N.  R.  ^^  Southern  Pine  Lumber  Co.  z\ 

Co.,   118   Fed.  613;   Nicola,   Stone  Southern  Ry.   Co.,  14  L  C.  C.  R. 

&  Meyers  Co.  v.  Louisville  &  N.  195;   Baer  Bros.  v.  Mo.  Pac.  Ry. 

R.  Co.,  14  L  C.  C.  199;  Blackhorse  Co.,  13  L  C.  C.  R.  329;  National 

Tobacco   Co.  v.   Illinois   Cent.   R.  Refining  Co.  v.  Atchison,  T.  &  S. 

Co.,   17    I.    C.    C.    588.      Nor   is    it  F.  Ry.  Co.,  IS  I.  C.  C.  389;  Penn- 

necessary  that  all  the  parties  lia-  sylvania    R.    Co.   v.    International 

ble    should  be    defendants,    Inde-  Coal  Co.,  173  Fed.  1,  97  C.  C.  A. 

pendent   Refiners  Assn.  v.  West-  383.    While  this  case  was  reversed 

ern  N.  Y.  &  P.  R.  Co.,  6  I.  C.  C.  by     the     Supreme     Court,     same 

378;  Webster  Grocery  Co.  v.  Chi-  styled  case,   230  U.   S.  184,  57  L. 


§  216.]  OF  THE  Act  to  Regulate  Commerce.  347 

sion  of  the  courts.  It  may  be  admitted  that  ordinarily  where  a 
payment  is  voluntarily  made  it  can  not  be  recovered,  but  where 
a  payment  must  be  made  by  force  of  law  and  where  the  law 
prescribes  a  particular  method  by  which  it  may  be  determined 
whether  or  not  the  payment  is  legal,  protest  is  neither  necessary 
nor  effective.  The  case  of  Knudsen-Ferguson  Fruit  Co.  v.  Chi- 
cago, St.  P.,  ]\I.  &  O.  Ry.  Co.  ^2^  illustrates  the  distinction  be- 
tween charges  collected  under  the  force  of  a  tariff  and  charges 
paid  voluntarily.  In  that  case,  an  icing  charge  of  $45.00  was 
made  under  a  tariff'  treating  icing  as  a  separate  charge  from 
transportation,  the  schedules  stating  "that  the  published  charge 
for  transportation  did  not  include  the  cost  of  icing  in  transit, 
but  that  the  carrier  would  impose  an  additional  charge  for  such 
service."  Such  a  tariff"  would  not  comply  with  the  present  law 
as  to  filing  tariff's,  but  it  is  clear  that  no  icing  charges  were 
specified  in  the  tariff'  and  a  payment  of  such  charges  was  not 
made  under  the  force  of  law.  Therefore,  when  ten  days  after 
having  received  his  goods,  the  shipper  voluntarily  paid  the  icing 
charges  the  court  correctly  held,  in  a  suit  brought  a  year  there- 
after, that  he  could  not  recover.  While  it  is  true  that  protest 
is  not  necessary,  a  shipper,  when  an  illegal  advance  is  made, 
should  not  continue  paying  it,  without  objection  or  protest  until 
a  large  claim  has  accumulated  against  the  carrier. 

§  216.  Damages — Interest  and  Attorneys  Fees. — It  is  the 
practice  of  the  Commission  to  allow  interest  at  six  per  cent  on 

Ed.  1446,  33  Sup.  Ct.  S93,  that  916.  The  statement  in  Denver 
court  did  not  discuss  this  ques-  &  R.  G.  R.  Co.  v.  Baer  Bros, 
tion  and  remanded  the  case,  Mercantile  Co.,  209  Fed.  577,  580, 
which  would  have  been  useless  if  126  C.  C.  A.  399,  was  directed  to 
protest  had  been  necessary;  the  subject  of  interest  and  can- 
Mitchell  Coal  &  Coke  Co.  v.  not  be  claimed  as  a  precedent 
Pennsylvania  R.  Co.,  181  Fed.  against  the  principles  stated  in 
403.  The  subsequent  history  of  the  text.  See  Baer  Bros.  Mer- 
this  case,  though  not  affecting  cantile  Co.  v.  D.  &  R.  G.  R.  Co., 
this  question,  is:  Dismissed,  same  233  U.  S.  479,  58  L.  Ed.  1055,  34 
styled  case,  183  Fed.   908,  appeal  Sup.    Ct.    641. 

dismissed,    same   styled   case,   192  ^"'  Knudson-Ferguson    Fruit    Co. 

Fed.  475,   112   C.    C.   A.  637,  writ  v.   Chicago,   St.  P.,  M.   &  O.   Ry. 

of    certiorari    denied,    223    U.    S.  Co.,    149    Fed.    973,    79    C.    C.    A. 

733,    56    L.    Ed.    635,    32    Sup.    Ct.  483,  204  U.  S.  670,  51  L.  Ed.  672. 

528.     On  appeal  afifirmed  in  part  Petition  for  writ  of  certiorari  de- 

and    reversed    in    part,    230   U.    S.  nied. 
247,    57    L.    Ed.    1472,    33    Sup.    Ct. 


348  Enforcement  by  the  Commission  [§  217. 

awards  of  damages.  The  statute  makes  no  provision  for  inter- 
est, but  the  loss  of  the  money  is  an  injury  and  to  give  "the  full 
amount  of  damages"  must  include  interest.  That  the  Commis- 
sion has  this  power,  has  been  asserted  when  a  protest  was 
made,^-'''  though  it  would  seem  from  the  authorities  discussed 
in  the  next  preceding  section  that  a  protest  is  immaterial. 

Attorneys  fees  are  provided  for  by  the  statute  and  may  be 
fixed  by  the  court  when  the  award  of  the  Commission  is  sued 
on  and  recovery  is  had.     The  statute  is  a  valid  law.^-^ 

The  Commission  has  no  authority  and  does  not  assume  to 
award  attorney's  fees.^-'^  nor  can  attorney's  fees  be  allowed  by  the 
courts  for  the  services  of  an  attorney  before  the  Commission. 
The  attorney's  fees  are  allowed  only  for  servdces  in  the  courts. ^^^^ 

§  217.  Award  of  Damages  an  Inadequate  Remedy. — Prior 
to  the  Amendment  of  1910,  when  a  carrier  advanced  a  rate  the 
only  remedy  the  Commission  could  enforce  was  to  investigate 
upon  complaint  filed  and,  after  hearing,  award  damages  for  the 
illegal  exaction,  if  the  rate  increased  was  held  unlawful.  The 
Commission  recognized  this  and  stated  the  fact  as  follows : 

"While  it  is  certainly  true  that  the  remedy  by  way  of  damages 
is  utterly  inadecjuate  and  inconsistent,  it  is  apparently  the  remedy 
prescribed  by  the  act  to  regulate  commerce  and  the  only  remedy 
which  the  shipper  has  against  the  exaction  of  an  unreasonable 
interstate  rate."  ^-^^ 

Some  of  the  federal  courts  held  that  an  injunction  could  is- 
sue' preventing  an  advance  or  at  least  staying  the  advance  until 
the  Commission  could  determine  whether  or  not  the  increased 
rate  was  illegal,  ^^-  but  there  was  uncertainty  about  the  remedy. 


'='  Denver    &    R.    G.    R.    Co.    v.  '-'  Councill  v.  Western   &  A.  R. 

Baer    Bros.    Merc.    Co.,    209    Fed.  Co.,    1    I.    C.    C.    339,    1    I.    C.    R. 

577,    580,    126    C.    C.   A.    399.  638;    Washer    Grain    Co.    v.    Mis- 

^' Chicago,   B.    &   Q.    R.    Co.   v.  souri    Pac.    Ry.    Co.,    15    I.    C.    C. 

Feintuch,    191    Fed.   482,    -188,    489,  147,   152,   154.   155. 

112    C.    C.   A.    126;    Denver    &   R.  ''"  Meeker  v.  Lehig-h  V.  R.   Co., 

G.    R.    Co.    V.    Baer    Bros.    Mer-  236   U.    S.   412,    59   L.    Ed.   — ,   35 

cantile  Co.,  209  Fed.  577,  581,  and  Sup.   Ct.   328;   Mills  v.  Lehigh  V. 

cases    there    cited,    126    C.    C.    A.  R.   Co.,   238  U.   S.  473,   59   L.   Ed. 

399.    No  Attorney's  fees  in  suit  in  — ,   35   Sup.   Ct.   888. 

state  court  for  excess  rate,  Kan-  ^"'  McGrew     v.     Missouri     Pac. 

sas   City  S.  Ry.   Co.  v.  Tonn,   102  Ry.   Co..   8   I.   C.   C.   630. 

Ark.   20,    143    S.   W.   577.  '''  Sees.    304    and   305,   post. 


§  218.]  OF  THE  Act  to  Regulate  Commerce^.  349 

To  meet  this  evil,  the  Amendment  of  1910  was  enacted,  giving 
the  Commission  power  to  suspend  an  advance. ^-"^ 

§  218.  Damag-es,  Limitation  on  Complaint  for. — Section 
sixteen  of  the  Act  to  Regulate  Commerce  as  amended  by  the 
Hepburn  law  fixed  a  limitation  on  the  right  of  action  for  dam- 
ages in  the  following  language :  "All  complaints  for  the  recovery 
of  damages  shall  be  filed  with  the  commission  within  two  years 
from  the  time  the  cause  of  action  accrues,  and  not  after,  and  a 
petition  for  the  enforcement  of  an  order  for  the  payment  of 
money  shall  be  filed  in  the  circuit  court  within  one  year  from  the 
date  of  the  order,  and  not  after."  ^^^  Prior  to  this  amendment 
there  was  no  limitation  in  the  statute  and  the  limitation  laws  of 
the  state  in  which  a  suit  was  filed  controlled. ^^-^  No  limitation 
ran  prior  to  the  effective  date  of  the  Hepburn  Amendment  which 
date  was  held  to  be  August  28,  1906,  although  the  x\ct  was  ap- 
proved June  29,  1906.i2c 

A  complaint  filed  by  an  association  demanding  reparation  un- 
der general  averments,  which  does  not  name  the  members  on 
whose  behalf  it  is  filed  and  which  does  not  with  reasonable  par- 
ticularity specify  and  describe  the  shipments  as  to  which  the  com- 
. plaint  is  made,  will  not  operate  to  stop  the  running  of  the  period 
of  limitation  fixed  by  law.^^^ 

When,  however,  an  individual  files  a  complaint  for  reparation 
in  his  own  behalf,  an  informal  complaint  will  stop  the  running 
of  the  statute.i^^ 

"'  Sees.   398,  post.  '"  Missouri     &     Kan.     Shippers 

"*  Sec.  408,  post.  Asso.  v.  Atchison,  T.  &  S.  F.  Ry. 

""Ratican       v.       Terminal       R.  Co.,   13   I.    C.   C.   411. 

Asso.,     114     Fed.     666.       Contra  '''Venus  v.   St.   Louis,   I.   M.   & 

holding   R.    S.    U.    S.    §   1047   ap-  S.   Ry.  C  .,   15  I.   C.   C.   136,  137; 

plied.     Carter  v.   New  Orleans   &  Woodward   &  D.   v.   Louisville   & 

N.   E.   R.  Co.,  143  Fed.  99,  74   C.  N.  R.  Co.,  15  L  C.  C.  170;  Beek- 

C.   A.   293;    Cattle    Raisers'    Asso.  man    Lumber    Co.    v.    St.    Louis, 

V.   Chicago,    B.   &   Q.   R.   Co.,    10  L   M.   &  S.   Ry.  Co.,   15   L   C.   C. 

L    C.    C.    83.  274,  276;   Hartman   Furn.   &   Car- 

'""  Nicola,  Stone  &  Myers  Co.  pet  Co.  v.  Wisconsin  Cent.  Ry. 
T.  Louisville  &  N.  R.  Co.,  14  L  Co.,  15  L  C.  C.  530,  531;  Duluth 
C.  C.  199,  206.  See  also  Kile,  Log  Co.  v.  Minnesota  &  Int.  Ry. 
Morgan  &  Co.  v.  Deepwater  Ry.  Co.,  15  L  C.  C.  627;  Nicola, 
Co.,  15  L  C.  C.  235;  Nollenberger  Stone  &  Myers  Co.  v.  Louisville 
V.  Mo.  Pac.  Ry.  Co.,  15  L  C.  C.  &  N.  R.  Co.,  14  L  C.  C.  199,  206; 
595;  Re  When  a  Cause  of  Action  Louisville  &  N.  R.  Co.  v.  Dick- 
Accrues,  15  L  C.  C.  201,  204.  crson,    191   Fed.  705,   112   C.   C.  A. 


350  Enforcement  bv  the  Commission  [§  219. 

The  cause  of  action  accrues  when  the  shipment  terminates  and 
the  complainant  heconies  hahle  for  the  freight  and  not  when  the 
money  is  actually  paid.^^'-^ 

The  Commission  has  no  jurisdiction  unless  the  claim  is  filed 
in  time  and  can  not  reheve  from  the  operation  of  the  statute.^*" 

§  219.  General  Investigations  by  the  Commission. — The 
Interstate  Commerce  Commission  is  authorized  and  empowered 
to  enforce  the  provisions  of  the  act  to  regulate  commerce.  To 
accomplish  which  it  has  authority  to  inquire  into  the  manage- 
ment of  the  business  of  all  common  carriers  subject  to  the  pro- 
visions of  this  act,  and  shall  keep  itself  informed  as  to  the  man- 
ner and  method  in  which  the  same  is  conducted,  and  shall  have 
the  right  to  obtain  from  such  common  carriers  full  and  com- 
plete information  necessary  to  enable  the  Commission  to  perform 
the  duties  and  carry  out  the  objects  for  which  it  was  created, 
and  it  may  institute  any  inquiry  on  its  own  motion  in  the  same 
manner  and  to  the  same  eil'ect  as  though  complaint  had  been 
made.  It  also  has  "power  to  require,  by  subpoena,  the  attendance 
and  testimony  of  witnesses  and  the  production  of  all  books, 
papers,  tariffs,  contracts,  agreements,  and  documents  relating  to 
any  matter  under  investigation.  Such  attendance  of  witnesses, 
and  the  production  of  such  documentary  evidence,  may  be  re- 
quired from  any  place  in  the  United  States,  at  any  designated 
place  of  hearing.  And  in  case  of  disobedience  to  a  siibpcrna  the 
Commission,  or  any  party  to  a  proceeding  before  the  Commis- 
sion, may  invoke  the  aid  of  any  court  of  the  United  States  in 
requiring  the  attendance  and  testimony  of  witnesses  and  the  pro- 
duction of  books,  papers,  and  documents  under  the  provisions  of 
this  section."^"' ^ 

In  the  Brimson  case,^^-   an  informal  complaint  having  been 

295;    but    the    informal    complaint  ""Werner   Saw    Mill    Co.   v.   II- 

must  refer  to  the  particular  rate  linois    Cent.    R.    Co..    17    I.    C.    C. 

involved,    Acme    Cement    Plaster  388;      Morrisdale      Coal      Co.     v. 

Co.  V.   St.  Louis  &  S.  F.  R.   Co.,  Pennsylvania    R.    Co.,    230    U.    S. 

18   I.    C.    C.   376.  304,    57    L.    Ed.    1474,    3    Sup.    Ct. 

"'Arkansas     Fertilizer     Co.     v.  93S. 

United  States,  193  Fed.  667,  Com.  '"Sec.  12  of  Act;  Sec.  390.  {>ost. 

Court    Opinion    Xo.    43,    p.    283;  ""Int.    Com.    Com.   z\    Brimson, 

Blinn    Lumber    Co.    z:    Southern  154  U.   S.  447,  38  L.   Ed.   1047,  14 

Pac.  Co..  18  I.  C.  C.  430;  Meeker  Sup.   Ct.  1125. 
z:    Lehigh    \'.    R.    Co.,    236   U.    S. 
412,  59  L.  Ed.  — ,  35  Sup.  Ct.  32S. 


§  219.]  OF  THE  Act  to  Regulate  Commerce.  351 

made  of  the  facilities  of  certain  carriers,  the  Commission  of  its 
own  motion  decided  to  investigate  the  matters  set  forth  in  such 
complaint ;  and  thereupon  it  made  an  order  reciting  the  facts  of 
the  informal  complaint  and  requiring  each  of  certain  named  car- 
riers "to  make  and  file,  in  its  ofifice  at  Washington,  a  full,  com- 
plete, perfect  and  specific  verified  answer  setting  forth  all  facts 
in  regard  to  the  matters  complained  of  and  responding  to"  cer- 
tain questions  relating  to  the  methods  of  operation  of  the  car- 
riers and  especially  as  to  the  relation  of  such  carriers  to  the 
Illinois  Steel  Company.  To  these  questions  each  carrier  filed 
a  denial  and  each  averred  that  it  had.  in  all  respects,  complied 
with  the  obligations  imposed  by  the  laws  of  the  United  States. 
Notwithstanding  these  denials,  the  Commission  continued  the  in- 
vestigation by  the  examination  of  witnesses  and  books  and  docu- 
ments. It  subpa-uaed  W.  G.  Brimson,  who  was  president  and 
manager  of  five  carriers  incorporated  under  the  laws  of  Illinois, 
which  carriers  were  among  those  under  investigation.  This  wit- 
ness refused  to  answer  the  question  as  to  the  ownership  of  his 
companies  by  the  Illinois  Steel  Company.  Other  witnesses  re- 
fused to  answer  the  same  question.  The  Commission  thereupon 
filed  its  petition  in  the  circuit  court  praying  that  the  witnesses 
be  required  to  answer  the  questions.  The  circuit  court  refused 
the  order,  holding  that  the  proceeding  did  not  constitute  a  con- 
troversy to  which  the  judicial  power  of  the  United  States  could 
be  extended.  Section  twelve  of  the  act  was  held  valid  in  the 
Supreme  Court,  the  circuit  court  reversed  and  the  cause  re- 
manded, with  directions  to  proceed  in  conformity  with  the  opin- 
ion of  the  Supreme  Court.  The  very  able  opinion  of  Mr.  Justice 
Harlan  concluded  as  follows  : 

"We  are  of  the  opinion  that  a  judgment  of  the  circuit  court 
of  the  United  States  determining  the  issues  presented  by  the 
petition  of  the  Interstate  Commerce  Commission  and  by  the  an- 
swers of  appellees,  will  be  a  legitimate  exertion  of  judicial  au- 
thority in  a  case  or  controversy  to  which,  by  the  Constitution,  the 
judicial  power  of  the  United  States  extends.  And  a  final  order 
by  that  court  dismissing  the  petition  of  the  Commission,  or  re- 
quiring the  appellees  to  answer  the  questions  propounded  to 
them,  and  to  produce  the  books,  papers,  etc..  called  for,  will  be 
a  determination  of  questions  upon  which  a  court  of  the  United 
States  is  capable  of  acting  and  which  may  be  enforced  by  judi- 
cial process." 


352  Enforcement  by  the  Commission  [§  220. 

In  the  Baircl  case,^-^^  which  was  also  an  appHcation  of  the  Com- 
mission to  the  court  to  compel  the  testimony  of  witnesses,  the 
defendant  urged  that  though  a  complaint  was  filed,  the  com- 
plainant "did  not  show  any  real  interest  in  the  case  brought." 
The  witnesses  were  required  to  answer. 

In  the  Harriman  case,^"*^  the  investigation  was  upon  the  mo- 
tion of  the  Commission,  not  upon  complaint-  The  relations  be- 
tween the  Union  Pacific  Railroad  Company  and  other  connecting 
roads,  whether  parallel  or  not,  were  inquired  about  and  cer- 
tain questions  asked  were,  under  advice  of  counsel,  not  an- 
swered by  the  witnesses. 

The  gist  of  the  opinion  is  contained  in  a  short  paragraph, 
which  is  here  reproduced : 

"We  are  of  opinion  on  the  contrary  that  the  purposes  of 
the  act  for  \yhich  the  Commission  may  exact  evidence  embrace 
only  complaints  for  violation  of  the  act,  and  investigations  by 
the  Commission  upon  matters  that  might  have  been  made  the  ob- 
ject of  complaint.  As  we  have  already  implied  the  main  pur- 
pose of  the  act  was  to  regulate  the  interstate  business  of  car- 
riers, and  the  secondary  purpose,  that  for  which  the  Commission 
was  established,  was  to  enforce  the  regulations  enacted.  These 
in  our  opinion  are  the  purposes  referred  to ;  in  other  words  the 
power  to  require  testimony  is  limited,  as  it  usually  is  in  Eng- 
lish-speaking countries  at  least,  to  the  only  cases  where  the 
sacrifice  of  privacy  is  necessary — those  where  the  investigations 
concern  a  specific  breach  of  the  law." 

In  its  twenty-second  Annual  Report  (1908)  the  Commission 
pointed  out  the  difficulties  of  administering  the  law  with  the 
limitations  stated  in  the  Harriman  case. 

§  220.  Same  Subject — Amendment  of  1910. — Section  13 
of  the  Act  in  force  at  the  date  of  the  decision  in  the  Harriman 
case  supra,  after  providing  for  hearings  on  complaint,  in  addi- 
tion to  the  power  conferred  by  section  12  supra,  gave  power  to 
the  Commission  to  "institute  any  inquirv  on  its  own  motion  in 
the  same  manner  and  to  the  same  eft'ect  as  though  complaint  had 
been  made."  The  same  section  as  amended  by  the  Act  of  1910  ^"*^ 
materially  enlarges  the  powers  of  the  Commission  in  this  respect, 

"'  Int.  Com.  Com.  v.  Baird,  194  '"  Harriman  v.  Int.  Com.  Com., 

U.    S.    25,    -48    L.    Ed.    860,    867,    24       211  U.   S.  407.  419.  420.  53  L.   Ed. 
Sup.   Ct.   563.  253.  29   Sup.   Ct.   115. 

"'Sec.   393,  post. 


§  220.]  OF  THE  Act  to  Regulate  Commerce.  353 

giving  it  full  authority  and  power  "on  its  own  motion  in  any 
case  and  as  to  any  matter  or  thing  concerning  which  a  complaint 
is  authorized  to  be  made,  to  or  before  said  Commission  by  any 
provision  of  this  Act,  or  concerning  which  any  question  may 
arise  under  any  of  the  provisions  of  this  Act,  or  relating  to  the 
enforcement  of  any  of  the  provisions  of  this  Act.  And  the  said 
Commission  shall  have  the  same  powers  and  authority  to  proceed 
with  any  inquiry  instituted  on  its  own  motion  as  though  it  had 
been  appealed  to  by  complainant  on  petition  under  any  of  the 
provisions  of  this  Act,  including  the  power  to  make  and  enforce 
any  order  or  orders  in  the  case,  or  relating  to  the  matter  or 
thing  concerning  which  the  inquiry  is  had  excepting  orders  for 
the  payment  of  money." 

In  the  Harriman  case  this  quaere  was  propounded:  "Whether 
Congress  has  unlimited  power  to  compel  testimony  in  regard  to 
subjects  which  do  not  concern  direct  breaches  of  the  law,  and 
whether,  and  to  what  extent,  it  can  delegate  such  power."  It 
need  not  be  said  that  Congress  has  uiiliinited  power  in  this  re- 
spect but  it  would  seem  that  the  power  granted  to  the  Commis- 
sion as  stated  herein  was  a  proper  and  constitutional  delegation 
because  necessary  to  the  performance  of  the  duties  of  the  Com- 
mission under  the  Act  to  Regulate  Commerce.  The  Goodrich 
Transit  Co.  case,  while  not  directly  in  point,  supports  this  state- 
ment.146 

The  provisions  of  the  act  giving  the  Commission  power  to 
prescribe  methods  of  accounting  and  to  require  reports  from  the 
carriers  subject  to  its  jurisdiction,  are  complementary  to  the 
power  to  make  general  investigations,  and  these  powers  relating 
to  the  accounts  wdiich  such  carriers  must  keep  are  valid. ^'*'^  In 
making  investigations  into  the  "accounts,  records  and  memo- 
randa" kept  by  the  carriers,  the  Commission  has  no  power  to  inves- 
tigate general  correspondence  and  original  documents  not  required 
to  be  entered  on  their  books. ^^^    The  rather  extraordinary  avowal 

""Interstate      Com.      Com.     v.  "'Kansas    City    S.    Ry.    Co.    v. 

Goodrich   Transit    Co.,   224   U.    S.  U.'   S.,   231   U.    S.   423,    58    L.    Ed. 

194,  56  L.  Ed.  729,  32  Sup.  Ct.  436,  296.   34   Sup.   Ct.   125. 

reversing  Commerce  Ct.  in  Good-  "'United  States  v.  L.   &  N.  R. 

rich     Transit     Co.     v.     Interstate  Co.,  212  Fed.  486;  affirmed  United 

Com.   Com.,   190   Fed.   943,   Com-  States  v.  L.  &  N.  R.  Co.,  236  U. 

merce  Court  Opinion  Nos.  21-24,  S.  318,  59  L.  Ed.  — ,  35   Sup.  Ct. 

p.  95.  363;  United  States  v.  N.  C.  &  St. 


L.    Ry.,   217    Fed.   254. 


—13 


354  Enforcement  by  the  Commission  [§  221. 

by  counsel  asking  the  questions  that  they  were  asked  as  the  be- 
ginning of  "an  attempt  to  go  into  the  whole  business  of  the 
Armour  car  lines — a  fishing  expedition  into  the  affairs  of  a 
stranger  for  the  chance  that  something  discreditable  might  turn 
up,"  resulted  in  the  Ellis  case  ^^^  in  a  refusal  by  the  witness  to 
answer  the  questions.  After  making  the  statement  in  the  quota- 
tion above,  the  Supreme  Court  held  that  the  Commission  had 
no  power  to  demand  answers  to  such  questions. 

§  221.  Commission  May  Ask  the  Aid  of  Courts  to  En- 
force the  Law. — \\'e  have  seen  that  the  Commission  may  apply 
to  courts  to  aid  it  in  obtaining  testimony  in  investigations  re- 
lating to  violations  of  the  Act  to  Regulate  Commerce-  Upon 
the  request  of  the  Commission,  it  shall  be  the  duty  of  any  dis- 
trict attorney  of  the  United  States  to  whom  the  Commission  may 
apply  to  institute  in  the  proper  court  and  to  prosecute  under  the 
direction  of  the  Attorney-General  of  the  United  States  all  nec- 
essary proceedings  for  the  enforcement  of  the  provisions  of  the 
Act  to  Regulate  Commerce  and  for  the  punishment  of  all  viola- 
tions thereof. 

At  the  request  of  the  Commission  suit  was  filed  and  an  injunc- 
tion granted  enjoining  a  carrier  from  engaging  in  interstate 
commerce  without  fihng  tariffs  and  making  reports  as  required 
by  law  and  also  enjoining  discriminatory  practices. ^•'"'^ 

§  222.  Commission  Has  Power  to  Prescribe  Rates  for 
the  Future. — \Mien  the  act  to  regulate  commerce  was  originally 
passed  the  Conimission  appointed  thereunder,  believing  the  law 
so  authorized,  exercised  the  power  to  prescribe  rates  for  the  fu- 
ture. That  this  power  was  not  delegated  to  the  Commission 
prior  to  the  Hepburn  amendment  was  definitely  decided  by  the 
Supreme  Court  in  Interstate  Commerce  Commission  v.  Cincin- 
nati, N.  O.  &  T.  P.  R.  Co.,^^^  where  the  question  was  elaborately 
discussed  and  the  conclusion  stated  "that  under  the  interstate 
commerce  act  the  Commission  has  no  power  to  prescribe  the  tar- 
tiff  of  rates  which  shall  control  in  the  future."     Under  the  old 

"°  Ellis      z\       Interstate       Com.  Court,     192     Fed.      330,      Opinion 

Com.,    237    U.    S.    434,    59    L.    Ed.  Com.    Ct.    Xo.   15,   p.   1S9. 

— ,   35   Sup.    Ct.   645.  '"  Interstate  Com.  Com.  v.  Cin- 

''"  United  States  t'.  Union  Stock  cinnati,    N.    O.    &   T.    P.    R.    Co., 

Yard  &  Transit  Co.,  226  U.  S.  286,  167   U.   S.   479,   42   L.   Ed.   243.    17 

57    L.     Ed.     226,     33    Sup.    Ct.    S3.  Sup.    Ct.   896. 
same    stvled    case    in    Commerce 


§  222.]  OF  THE  Act  to  Regulate  Commerce.  355 

law  the  Commission  had  and  exercised  the  power  to  declare  a 
particular  advance  in  rates  illegal.  The  exercise  of  this  power 
practically  meant  prescribing  the  old  rate  as  the  rate  for  the  fu- 
ture. This  is  clearly  shown  in  the  Tift  Case.  There  an  advance 
was  made  by  the  carriers,  this  advance,  on  hearing,  was  declared 
illegal,  and  the  whole  advance  was  held  to  be  the  measure  of  rep- 
aration allowed  shippers. ^^^ 

The  Amendments  of  1906  and  of  1910,  give  the  Commission 
power,  after  full  hearing  upon  a  complaint  or  under  an  order 
for  investigation  and  hearing  made  by  the  Commission  on  its 
own  initiative  either  in  extension  of  a  pending  complaint  or  with- 
out any  complaint  whatever,  when  it  shall  be  of  opinion  that  the 
rates  or  practices  constitute  a  violation  of  any  of  the  provisions 
of  the  Act,  to  prescribe  what  will  be  the  just  and  reasonable  in- 
dividual or  joint  rate  or  rates,  charge  or  charges,  to  be  there- 
after observed  as  the  maximum  to  be  charged,  and  what  indi- 
vidual or  joint  classification,  regulation  or  practice  is  just,  fair, 
and  reasonable  to  be  thereafter  followed. ^-^^ 

When  a  rate,  regulation  or  practice  of  a  common  carrier  is 
within  the  jurisdiction  conferred  on  the  Commission  it  may  pre- 
scribe what  shall  be  such  rate,  regulation  or  practice  for  the  fu- 
ture, and  when  the  Commission  acts  on  substantial  evidence  in 
accordance  with  law,  its  orders  in  respect  to  the  questions  within 
its  jurisdiction  will  not  be  set  aside  by  the  courts.^'''*  "But,"  said 
Mr.  Justice  Lamar,  delivering  the  opinion  of  the  Supreme 
Court,  "the  legal  effect  of  evidence  is  a  question  of  law.  A  find- 
ing without  evidence  is  beyond  the  power  of  the  Commission. 
An  order  based  thereon  is  contrary  to  law,  and  must,  in  the  lan- 
guage of  the  statute,  be  'set  aside  by  a  court  of  competent  ju- 
risdiction.' "1^5 

"-Southern  Ry.  Co.  v.  Tift,  206  cago  &  A.  R.  Co.,  21.5  U.  S.  479., 

U.  S.  428,  51  L.  Ed.  1124,  27  Sup.  54    L.    Ed.    291,    30    Sup.    Ct.    163; 

Ct.    709;    Southern    Pine    Lumber  Interstate  Com.  Com.  v.  Chicago, 

Co.    V.    Southern    Ry.    Co.,    14    I.  R.   I.   &  P.  Ry.  Co.,  218  U.   S.  88, 

C.    C.   195;    Nicola,   Stone    &   My-  54    L.    Ed.    946,    ?,()    Sup.    Ct.    651; 

ers  Co.  7'.  Louisville  &  N.  R.  Co.,  Interstate    Com.    Com.    v.    Dela- 

14  I.  C.  C.  199.  ware,    L.    &    W.    R.    Co.,    220    U. 

'"Sec.  16  of  .^ct;  Sec.  406,  post.  S.  235,  55  L.  Ed.  448,  31   Sup.  Ct. 

"■*  Interstate      Com.      Com.      v.  392. 

Illinois    Cent.    R.    Co.,   215    U.    S.  '"Interstate      Com.      Com.      v. 

452,    54    L.    Ed.    280,    30    Sup.    Ct.  Louisville    &    N.    R.    Co.,    227    U. 

155;  Interstate  Com.  Com.  v.  Chi-  S.  88,  57  L.   Ed.  431,  33  Sup.  Ct. 


356 


Enforcement  by  the  Commission 


[§  222. 


The  "opinion"  of  the  Commission  upon  which  it  may  act  must 
be  based  upon  a  full  hearing  at  which  evidence  is  received,  of 
which     the     carrier    is    apprised    and    given  an    opportunity    to 

The  Commission  has  entered  many  orders  under  the  authority 
granted  by  this  provision.  Illustrative  of  these  are :  distribution 
of  cars/-^"^  prescribing  rates, ^^^  division  of  rates,^^^  terminal 
charges, ^^*^  ordinary  switch  connections,  ^^^  prohibiting  discrim- 


185,  reversing  Louisville  &  X.  R. 
Co.  V.  Interstate  Com.  Com.,  195 
Fed.   541,   Opinion   Com.    Ct.   No. 

4,  p.    325,    375. 

"'Atlantic  C.  L.  R.  Co.  v.  In- 
terstate Com.  Com.,  194  Fed.  449, 
Opinion  Com.  Ct.  No.  3.  p.  255. 

"'Traer  v.  Chicago  &  A.  R 
Co.,  13  I.  C.  C.  451;  Chicago  & 
A.  R.  Co.,  and  Illinois  Cent.  R 
Co.  v.  Interstate  Com.  Com.,  173 
Fed.  930;  Interstate  Com.  Com 
V.    Illinois    Cent.    R.    Co.,    215    U 

5.  452,  54  L.  Ed.  280,  30  Sup.  Ct 
155;  Interstate  Com.  Com.  v 
Chicago  &  A.  R.  Co.,  215  U.  S 
479,  54  L.  Ed.  280,  30  Sup.  Ct 
163;  Hillsdale  Coal  &  Coke  Co 
V.  Pennsylvania  R.  Co.,  19  I.  C 
C.  356,  sustained,  Pennsylvania 
R.  Co.  V.  Interstate  Com.  Com., 
193  Fed.  81,  Opinion  Com.  St. 
No.    31,    p.    275. 

"^  Burnham-Hanna-Munger  Dry 
Goods  Co.  V.  Chicago,  R.  I.  & 
P.  Ry.  Co.,  14  I.  C.  C.  299,  order 
enjoined,  Chicago,  R.  I.  &  P.  Ry. 
Co.  V.  Interstate  Com.  Com.,  171 
Fed.  680,  Commission  sustained, 
Interstate  Com.  Com.  z\  Chicago, 
R.  I.  &  P.  Ry.  Co.,  218  U.  S. 
88,  96,  54  L.  Ed.  946,  30  Sup.  Ct. 
651,  holding  that  the  power  ex- 
tends to  the  regulation  of  old 
or  new  rates,  notv^^ithstanding 
changes  in  business  may  be  nec- 
essary. 

"°  Eichenberg  v.   Southern  Pac. 


Co.,  14  I.  C.  C.  250,  injunction 
denied.  Southern  Pac.  Terminal 
Co.  V.  Interstate  Com.  Com.,  166 
Fed.  134,  Commission  sustained, 
Southern  Pac.  Terminal  Co.  v. 
Interstate  Com.  Com.  219  U.  S. 
498,  55  L.  Ed.  310,  31  Sup.  Ct. 
279. 

^"^  Cincinnati  &  C.  Traction  Co. 
V.  Baltimore  &  O.  S.  W.  R.  Co.. 
20  I.  C.  C.  486,  enjoined,  Balti- 
more &  O.  S,  W.  R.  Co.  z:  United 
States,  195  Fed.  962,  Opinion 
Com.  Ct.  No.  60,  p.  431,  order 
voided,  United  States  v.  Balti- 
more &  O.  S.  W.  R.  Co.,  226  U. 
S.  14,  57  L.  Ed.  104,  33  Sup. 
Ct.   5. 

""■'  Corp.  Com.  of  North  Caro- 
lina v.  Norfolk  &  W.  Ry.  Co.,  19 
I.  C.  C.  303,  order  sustained, 
Norfolk  &  W.  Ry.  Co.  t:  United 
States,  195  Fed.  953,  Opinion 
Com.  Ct.  No.  40,  p.  413;  New  Or- 
leans Board  of  Trade  r.  Louis- 
ville &  N.  R.  Co..  17  I.  C.  C.  231. 
order  set  aside,  Louisville  &  N.  R. 
Co.  V.  Interstate  Com.  Com..  195 
Fed.  541,  Opinion  Com.  Ct.  No.  4. 
pp.  325,  375,  Commerce  Ct.  re- 
versed Interstate  Com.  Com.  v. 
Louisville  &  N.  R.  Co.,  227  U.  S. 
88,  57  L.  Ed.  431,  33  Sup.  Ct.  185: 
Chamber  of  Commerce  of  New- 
port News  V.  Southern  Ry.  Co.. 
23  I.  C.  C.  345,  sustained.  South- 
ern Ry.  Co.  v.  United  States.  204 
Fed.  465,   Opinion   Com.   Ct.  No. 


§  223.]  OF  THE  Act  to  Regulate  Commerce.  357 

ination,  ^'^-  icing  charges  and  freecooling.i^s 

The  Commission,  however,  has  no  jurisdiction  to  fix  rates 
based  upon  estoppel  of  the  carrier.^'^^  When  rehef  is  denied 
to  the  shipper,  the  order  can  not  be  set  aside  bv  a  court. ^'^•^ 

§  223.  Suspension  of  Rates,  Regulations  and  Practices. 
— The  Act  of  1910  gives  the  Commission  authority,  with  or 
without  complaint  or  other  formal  pleadings,  but  upon  reason- 
able notice,  temporarily  to  suspend  and,  after  hearing,  to  make 
such  orders  in  reference  to  fares,  charges,  classifications,  regula- 
tions, and  practices,  as  would  be  proper  in  a  proceeding  after 
such  fares,  etc.,  became  eft'ective.  The  burden  of  proof  is  on  the 
carrier  at  all  hearings  involving  a  rate  increased  after  January  1, 
1910,  or  of  a  rate  sought  to  be  increased  after  the  passage  of  the 
Amendment  of  June  18,  1910.^^^  When  a  new  rule,  regulation 
or  practice  results  in  an  increased  rate,  it  Avould  be  a  rate  in- 
creased to  justify  which  the  burden  would  be  on  the  carrier  pre- 
scribing such  rule,  regulation  or  practice. 

The  Commission  has  held  many  investigations  under  this  sec- 
tion, the  most  conspicuous  of  which  are  the  Advances  in  Rates — 
Eastern  case,^*'"  Advances  in  Rates — Western  case,^"^*  Five  Per- 

82,   p.   603;   Railroad  Com.   of  La.  Opinion  Com.   Ct.   No.  41,  p.  627. 

V.  St.  Louis  &  S.  W.  Ry.  Co.,  23  affirmed,  Atchison,  T.  &  S.  F.  Ry. 

I.    C.    C.    31,    sustained,   Texas    &  Co.   v.   United    States,    232   U.    S. 

Pac.    Ry.    Co.    v.    United    States,  199,    58    L.    Ed.    56S,    34    Sup.    Ct. 

205    Fed.    380,    Opinion    Com.    Ct.  291. 

Xo.  68,  p.  655,  (Shreveport  Case);  '"Southern  Pac.  Co.  v.  Inter- 
Houston,  E.  &  W.  T.  Ry.  Co.  state  Com.  Com..  219  U.  S.  433, 
V.  United  States,  234  U.  S.  342,  55  L.  Ed.  283,  31  Sup.  Ct.  288,  re- 
58  L.  Ed.  1341,  34  Sup.  Ct.  833.  versing  Southern  Pac.  Co.  v.  In- 

'°^  Atchison,  T.  &  S.  F.  Ry.  Co.  terstate  Com.  Com.,  177  Fed.  963, 

v.  United  States,  203  Fed.  56,  59,  and  the   Commission  in  Western 

Opinion  Com.  Ct.  No.  61,  p.  537.  Oregon    Lumber   Mnfg.   Assn.    v. 

For  history  of   case,   see   Arling-  Southern  Pac.  Co.,  14  L  C.  C.  61. 

ton   Heights   Fruit  Co.  v.   South-  ""Proctor  &  Gamble  v.  United 

ern    Pac.    Co.,    22    L    C.    C.    149,  States,    225   U.    S.   282,   56   L.    Ed. 

Atchison,  T.   &   S.   F.   Ry.   Co.  v.  1091,   32   Sup.    Ct.   761;   Louisville 

Interstate    Commerce    Com.,    190  &  N.  R.  Co.  v.  United  States,  207 

Fed.   591.   Opinion    Com.    Ct.   No.  Fed.   591,   Opinion    Com.   Ct.    No. 

7,    p.    83.  86,    p.    699. 

""Arlington   Heights   Fruit   Co.  "''Re  Rates  on   Crushed   Stone, 

V.  Southern  Pac.  Co..  20  I.  C.  C.  29    I.    C.    C.    136. 

106;  Re  Precooling  and  Preicing,  "".Advances    in    Rates,    Eastern 

23   I.   C.   C.   267,   order  sustained,  Case,   20    I.    C.    C.    243. 

Atchison,  T.   &  S.   F.   Ry.   Co.  v.  '"Advances  in   Rates,  Western 

United     States,     204     Fed.     647,  Case,   20   I.    C.    C.   307. 


358  Enforcement  by  the  Commission  [§  224. 

cent  Advance/*'^  and  in  the  Western  Advance  Rate  case  1915.1'''*^ 
In  the  Eastern  advance  case  the  question  of  the  burden  of 
proof  was  discussed,  and  it  was  there  held  that  the  Amendment 
of  1910  was  unlike  the  English  Act  on  a  similar  subject.  Said 
the  Commission : 

"Nor  should  our  statute  receive  exactly  the  same  interpreta- 
tion wdiich  has  been  put  upon  the  English  act.  That  act  provides 
that  the  carrier  shall  justify  the  'increase  of  the  rate-'  Our  act 
provides  that  the  burden  of  proof  shall  be  upon  the  carrier  to 
show  that  the  'increased  rate'  is  just  and  reasonable.  The  Eng- 
lish act  creates  a  presumption  that  the  rates  in  effect  on  Decem- 
ber 31,  1892,  were  reasonable  rates,  and  the  justice  of  any  in- 
crease must  be  tried  by  that  standard.  Our  act  does  not  intend 
to  enact  that  all  rates  in  eft'ect  on  January  1,  1910,  are  just  and 
reasonable.  Upon  the  contrary,  it  is  open  to  any  shipper  or  to 
this  Commission  to  attack  such  a  rate  as  unjust  and  unreason- 
able. The  only  effect  of  our  statute  is  to  cast,  in  certain  cases, 
the  burden  of  proof  upon  the  carrier." 

It  was  also  then  held  that  rates  otherwise  reasonable  would  not 
be  permitted  to  be  advanced  "for  the  purpose  of  bolstering  up 
the  credit  of  our  railroads,"  and  that  "no  general  advance  in 
rates  should  *  *  *  be  permitted  until  carriers  have  exhausted 
every  reasonable  effort  toward  economy  in  their  business. "^"^ 

§  224.  Throug-h  Routes  and  Joint  Rates. — The  Commis- 
sion has,  after  hearing,  on  a  complaint  or  upon  its  own  initiative, 
the  right  to  establish  joint  rates  and  prescribe  the  divisions 
thereof,  and  the  terms  and  conditions  under  which  through 
routes  shall  be  operated.  Under  what  circumstances  a  through 
route  and  joint  rate  shall  be  prescribed  has  been  discussed 
herein,  section  195  supra,  and  need  not  be  repeated.  It  is  suffi- 
cient to  say  that  when  the  carriers  over  whose  lines  the  through 
route  is  to  be  established  are  subject  to  the  jurisdiction  of  the 
Commission,  the  Commission  has  a  discretion  as  to  whether  or 
not  it  will  establish  the  through  route  and  joint  rate.^'- 

§  225.  Allowances  for  Services  or  Instrumentalities. — 
The  Amendment  of  1906  provides : 

""Five  per   Cent   Case.  31   I.   C.  '''Pp.  253.  254.  255,  279  of  opin- 

C.   351,   32   I.    C.    C.   325.  ion    Eastern    Case,   supra. 

""Western  Rate  Advance  Case  "'*  Truckers     Transfer      Co.     v. 

1915,  35   I.   C.   C.  497.  Charleston  &  W.  C.   Ry.   Co..   27 

I.    C.    C.    275,    277. 


§  226.]  OF  THE  Act  to  Regulate  Commerce.  359 

"If  the  owner  of  property  transported  under  this  Act  directly 
or  indirectly  renders  any  service  connected  with  such  transpor- 
tation, or  furnishes  any  instrumentality  used  therein,  the  charge 
and  allowance  therefor  shall  be  no  more  than  is  just  and  rea- 
sonable, and  the  Commission  may,  after  hearing  on  a  complaint 
or  on  its  own  initiative,  determine  what  is  a  reasonable  charge 
as  the  maximum  to  be  paid  by  the  carrier  or  carriers  for  the  ser- 
vices so  rendered  or  for  the  use  of  the  instrumentality  so  fur- 
nished, and  fix  the  same  by  appropriate  order."  This  authority 
of  the  Commission  was  discussed  in  the  chapter  on  Equality  of 
Rates. 

§  226.  Powers  Enumerated,  Not  Exclude  Others. — By 
the  Amendment  of  1906,  concluding  section  15  of  the  Act,  it 
was  provided,  "the  foregoing  enumeration  of  powers  shall  not 
exclude  any  power  which  the  Commission  would  otherwise  have 
in  the  making  of  an  order  under  the  provisions  of  this  Act."  Ob- 
viously this  provision  is  not  a  grant  of  power;  it  merely  evi- 
dences a  legislative  intention  not  to  limit  any  general  grant  by 
specific  provisions  relating  to  particular  powers,  an  intention  that 
the  Act  should  be  construed  as  remedial.  The  general  purposes 
of  the  Act  were  to  prevent  unjust  rates,  to  require  fair  play  be- 
tween shippers,  and  to  make  rates  certain  in  order  that  such  fair 
play  might  exist,  and  Congress  has  emphasized  the  intention  that 
these  general  purposes  were  not  to  be  unduly  limited.  The  courts 
have  given  a  broad  construction  to  the  Act  in  determining 
whether  or  not  power  exists  to  efifectuate  these  general  pur- 
poses.^"'^  This  principle  was  well  stated  by  the  Commerce  Court 
as  follows : 

"A  statute  of  the  scope  of  the  interstate  commerce  act,  de- 
signed to  regulate  the  vast  interstate  transportation  business  of 
the  country,  is  not  to  be  narrowly  interpreted  in  accordance  with 
the  economical  or  physical  conditions  prevailing  at  the  time  of 
its  enactment."^"* 

'"  Interstate      Com.      Com.      v.  423,    5S    L.    Ed.    296,    34    Sup.    Ct. 

Goodrich   Transit   Co.,   224   U.   S.  125,    affirming    same    styled    case, 

194,    56   L.    Ed.    729,    32    Sup.    Ct.  204   Fed.    641,   and   sustaining  ac- 

436,    reversing    Goodrich    Transit  counting  orders   of  the   Commis- 

Co.  V.  Interstate  Com.  Com.,  190  sion. 

Fed.  943,  Opinion  Com.  Ct.  Nos.  '''Omaha    &    C.    B.    Street    Ry. 

21-24,  p.  95;   Kansas   City  S.   Ry.  Co.  v.  Interstate  Com.  Com.,  191 

Co.   V.   United    States,   231   U.    S.  Fed.    40,    Opinion    Com.    Ct.    No. 


360  Enforcement  by  the  Commission  [§  227. 

The  outlook  of  the  Commission  must  be  as  comprehensive  as 
the  whole  country  and  as  to  all  subjects  within  its  prescribed  au- 
thority it  has  power  to  make  such  orders  as  are  necessary  to 
enforce  the  great  remedial  purpose  of  the  Act.^'^ 

§  227.  Effect  of  Commission's  Orders. — When  an  award 
of  damages  is  made  "the  findings  and  order  of  the  Commission 
shall  be  prima  facie  evidence  of  the  facts  therein  stated."  Where 
orders  other  than  an  award  of  damages  are  made  they  are  bind- 
ing "unless  *  *  *  suspended  or  set  aside  by  a  court  of  compe- 
tent jurisdiction."  In  what  cases  and  for  what  causes  the  courts 
may  set  aside  these  orders  will  be  discussed  in  a  subsequent 
chapter. 

§  228.  Commission's  Control  over  Its  Orders. — The  Com- 
mission is  authorized  to  suspend  or  modify  its  orders  upon  such 
notice  and  in  such  manner  as  it  shall  deem  proper,  and  it  may 
grant  rehearings.  These  powers  will  be  discussed  in  the  chapter 
on  procedure  of  the  Commission. 

Until  such  orders  are  suspended  or  modified,  it  is  the  duty 
of  every  common  carrier,  its  agents  and  employees,  to  observe 
and  comply  therewith. 

§  229.  Commission  May  Employ  Attorneys. — "The  Com- 
mission may  employ  such  attorneys  as  it  finds  necessary  for 
proper  legal  aid  and  service  of  the  Commission  or  its  members 
in  the  conduct  of  their  work  or  for  proper  representation  of 
the  public  interest  in  investigations  made  by  it  or  cases  or  pro- 
ceedings pending  before  it,  whether  at  the  Commission's  own 
instance  or  upon  complaint,  or  to  appear  for  and  represent  the 
Commission  in  any  case  pending  in  the  Commerce  Court ;  and 
the  expenses  of  such  employment  shall  be  paid  out-  of  the  ap- 
propriation for  the  Commission." 

This  power  the  Commission  exercises,  its  attorneys  appearing 
in  investigations  before  the  Commission  or  in  advance  rate  cases 
and  other  investigations  of  general  interest,  and  cases  where  or- 
ders of  the  Commission  are  involved. 

25,    p.    147.      This    case    was    re-  '"Interstate  Com.  Com.  v.  Chi- 

versed    but    the    principle    quoted  cago,  R.  I.  &  P.  Ry.  Co.,  21S  U. 

not   referred   to,   Omaha   &   C.    B.  S.   88,   54  L.   Ed.  946,  30  Sup.   Ct. 

Street  Ry.-  Co.  v.  Interstate  Com.  651;     Interstate     Com.     Com.     v. 

Com.,    230    U.    S.    324,    57    L.    Ed.  Chicago,   B.   &  Q.   R.   Co.,  218  U. 

1501,    33    Sup.    Ct.   890.  S.   113,  54  L.  Ed.  959,  30  Sup.   Ct. 

660. 


§  230.]  OF  THE  Act  to  Regulate  Commerce.  361 

The  Commission,  the  United  States  by  the  Attorney-General, 
as  well  as  parties  to  the  orders  made  by  the  Commission,  may 
apply  to  the  United  States  District  Courts  for  the  enforcement 
of  such  orders. 

§  230.  Records  of  Commission. — Copies  of  schedules  and 
classifications  and  tariffs  of  rates,  fares  and  charges  filed  with 
the  Commission,  and  the  statistics,  tables  and  figures  contained 
in  the  reports  of  carriers  made  to  the  Commission  as  required 
by  law,  are  public  records  and  shall  be  received  as  prima  facie 
evidence  of  what  they  purport  to  be  in  investigations  by  the 
Commission  and  in  all  judicial  proceedings,  and  certified  copies 
shall  be  received  in  evidence  with  like  efTect  as  the  originals. 

Section  14  of  the  Act  makes  the  authorized  publication  of  the 
reports  and  decisions  of  the  Commission  competent  evidence. 
The  Supreme  Court  held  this  not  to  mean  that  courts  should 
take  judicial  notice  of  these  reports  and  decisions,  but  that  they 
were  admissible  without  obtaining  certified  copies ;  otherwise, 
the  rules  of  evidence  were  not  changed. ^'^ 

§  231.  Valuation  of  Railroad  Property. — In  the  Eastern 
Advance  Rate  case, ^""  Mr.  Commissioner  Prouty  delivering  the 
opinion  of  the  Commission,  speaking  of  the  facts  which  must 
be  considered  in  determining  the  question  as  to  what  net  earn- 
ings the  carriers  are  entitled,  stated  the  well  known  principle : 
"Both  the  value  of  the  property  and  what  is  a  fair  return  upon 
that  value  must  be  considered,"  and  then  said:  "Some  states 
have  authorized  and  even  instructed  their  railway  commissions 
to  put  a  value  upon  the  property  of  railways  operating  within 
their  borders.  In  some  instances  the  elements  to  be  considered 
in  determining  that  value  have  been  prescribed  by  statute,  and 
the  efifect  of  the  valuation  when  made  is  indicated-  This  com- 
mission has  no  such  authority.  We  can  not  in  this  case  fix  in 
terms  the  value  of  any  one  of  these  railroads,  nor  would  that 
value,  if  determined  in  this  case,  be  binding  in  subsequent  pro- 
ceedings ;  but,  manifestly,  in  order  to  decide  the  issue  presented 
we  must  have  a  general  notion  of  the  value  of  the  properties  of 
these  defendants  and  must  form  an  idea  of  the  elements  which 
should  properly  enter  into  the  determination  of  that  value." 

"'Robinson  v.   Baltimore   &  O.       in.sr  same  styled   case,  64  W.  Va. 
R.    Co.,    222   U.    S.   506,    .508,    56    L.        406,   6.3  S.   E.   32.3. 
Ed.   288,   32   Sup.   Ct.   114,   affirm-  "^Advances    in    rates.    Eastern 

Case,  20  I.   C.   C.  243,  256  to  277. 


362  EXFORCEMEXT    BY    THE    COMMISSIOX  [§    232. 

The  opinion  then  proceeds  to  state  and  discuss  the  rules  estab- 
Hshed  in  the  Smyth-Ames  case,i'S  and  to  point  out  the  benefit 
a  knowledge  of  the  value  of  the  property  "devoted  to  the  pub- 
lic service"  would  be  to  the  Commission. 

Congress,  by  Act  approved  "March  1,  1913,  amending  the  Act 
to  Regulate  Commerce,^"^  provided  that  the  "Commission  shall 
*  *  *  investigate,  ascertain  and  report  the  value  of  all  the 
property  owned  or  used  by  every  common  carrier  subject  to  the 
provisions  of  this  (the)  Act.  *  *  *  The  Commission  shall 
make  an  inventory  which  shall  list  the  property  of  every  common 
carrier  subject  to  the  provisions  of  this  (the)  Act  in  detail,  and 
show  the  value  thereof  *  *  *^  and  shall  classify  the  physical 
properties,  as  nearly  as  practicable,  in  conformity  wnth  the  clas- 
sifications of  expenditures  for  road  and  equipment,  as  prescribed 
by  the  Interstate  Commerce  Commission." 

§  232.  Valuation,  How  Made. — The  valuation  provided  by 
the  Amendment  shall  include  in  detail,  (1)  the  original  cost  of 
all  property  to  date,  the  cost  of  reproduction  new,  the  cost  of  re- 
production less  depreciation,  and  an  analysis  of  the  methods 
used  and  the  reasons  for  their  differences  if  any;  (2)  the  orig- 
inal cost  of  all  lands,  rights  of  way  and  terminals  and  the  pres- 
ent value  of  the  same;  (3)  the  same  information  as  to  property 
held  for  purposes  other  than  those  of  a  common  carrier;  (4) 
information  relating  to  the  issuance  of  stocks,  bonds  or  other 
securities  and  other  financial  arrangements;  and  (5)  informa- 
tion as  to  the  value  of  gifts  and  grants.  Except  as  provided  by 
the  statute,  the  Commission  is  given  power  to  prescribe  the 
method  of  procedure  to  be  followed  in  the  conduct  of  the  inves- 
tigation. The  carriers  are  required  to  aid  in  the  investigation 
by  furnishing  information  and  access  to  the  sources  thereof. 

After  such  valuation  is  made,  the  Commission  shall  in  like 
manner  keep  itself  informed  of  all  extensions  and  improvements 
or  other  changes  in  the  condition  and  value  of  the  property  of 
such  common  carriers,  revising  its  valuations  from  time  to  time 
to  fit  such  changes. 

Application  may  be  made  to  the  District  Courts  of  the  United 
States  to  compel  a  performance  by  the  carriers  of  the  duties 
placed  on  them  by  the  Amendment- 

'"Smyth    V.    Ames.    169    U.    S.  '"Sec.    19a    of    Act;    Sec.   420, 

466,    42    L.    Ed.    819.    IS    Sup.    Ct.       post. 
418. 


§  233.]  OF  THE  Act  to  Regulate  Commerce.  363 

§  233.  Finality  and  Effect  of  Valuation. — Provision  is 
made  for  notice  of  the  completion  of  the  tentative  valuation 
of  the  property  before  such  valuation  shall  become  final ;  protest 
may  be  filed  thereto  and  hearings  had. 

After  hearing,  the  Commission  shall  issue  an  order  making  a 
final  valuation,  which  valuation  shall  be  published,  and  when 
published  it  is  prima  facie  evidence  of  the  value  of  the  property 
in  all  proceedings  under  the  Act  to  Regulate  Commerce.  The 
valuation  so  fixed  is  subject  to  modification  by  the  Commission. 

§  234.  Office  of  Commission. — The  principal  office  of  the 
Commission  is  in  the  city  of  Washington,  where  its  general  ses- 
sions are  held.  One  or  more  commissioners  may,  and  sometimes 
do,  hold  sessions  in  dififerent  parts  of  the  United  States.  Its  in- 
quiries may  be,  and  frequently  are,  prosecuted  by  one  or  more 
commissioners. 

The  testimony  in  cases  is  usually  taken  at  some  place  most  con- 
venient to  the  parties  interested ;  this  is  written  out,  and  the 
Commission  at  Washington  determines  what  order  shall  be  en- 
tered. 

§  235.  Annual  Reports  from  Carriers. — The  Commission 
is  authorized  to  require  annual  reports  from  all  common  carriers 
subject  to  the  provisions  of  the  Act  and  from  the  owners  of  all 
railroads  engaged  in  interstate  commerce.  The  statute  provides 
what  these  reports  shall  contain  and  gives  the  Commission  au- 
thority to  prescribe  the  manner  in  which  such  reports  shall  be 
made.  The  time  for  filing  these  reports  may  be  extended  by 
the  Commission,  which  also  has  authority  "by  general  or  special 
orders  to  require  said  carriers,  or  any  of  them,  to  file  monthly 
reports  of  earnings  and  expenses,  and  to  file  periodical  or  spe- 
cial, or  both  periodical  and  special,  reports  concerning  any  mat- 
ters about  which  the  Commission  is  authorized  or  required  by 
this  or  any  other  law  to  inquire  or  to  keep  itself  informed  or  which 
it  is  required  to  enforce."  Penalties  and  forfeitures  are  pro- 
vided for  a  failure  to  comply  with  the  orders  of  the  Commis- 
sion in  this  respect-  Forms  of  accounting  may  also  be  prescribed, 
for  violation  of  which  prescribed  forms  penalties  are  provided. 

The  Commission  may  employ  examiners  to  inspect  accounts. 
False  entries  in,  or  willful  destruction,  mutilation  or  alteration, 
of  accounts  are  prohibited. 

The  Commission  may  prescribe  a  time  after  which  l^ooks, 
papers  and  documents  may  be  destroyed.  The  Supreme  Court 


364  Enforcement  by  the  Commission  [§  236. 

held  this  provision  constitutional  and  applicable  to  water  carriers 
engaged  in  interstate  commerce.^^'''^ 

In  the  Kansas  City  Southern  case,i*i  in  sustaining  an  order 
of  the  Commission  made  under  authority  of  the  section,  the  Su- 
preme Court  said:  "In  order  that  accounts  may  be  standardized, 
it  is  necessary  that  the  accounts  of  the  several  carriers  shall  be 
arranged  under  like  headings  or  titles.  *  *  *  So  far  as  such 
uniformity  requirements  control  or  tend  to  control  the  conduct 
of  the  carrier  in  its  capacity  as  a  public  servant  engaged  in  in- 
terstate commerce,  they  are  withijj  the  authority  constitutionally 
conferred  by  Congress  upon  the  Commission."  It  was  there 
held  that  a  requirement  of  the  Commission  that  when  existing 
shops  and  terminal  facilities  were  abandoned  and  new  ones 
erected,  that  there  should  be  charged  to  operating  expenses  "the 
cost  of  replacing  the  abandoned  property  in  kind,  plus  the  cost 
of  removal,  but  less  the  value  of  salvage,"  was  not  such  an  order 
as  would  be  set  aside  by  a  court  where  the  Commission  had  pro- 
ceeded "with  deliberation  and  after  proper  inquiry."  And  this 
was  true  although  the  apportionment  of  profits  to  preferred 
stockholders,  would,  as  a  result  of  such  method,  be  less  than 
they  would  otherwise  be  entitled  to. 

§  236.  Examiners. — The  Commission  may  employ  special  ex- 
aminers "to  inspect  and  examine  any  and  all  accounts,  records 
and  memoranda"  kept  by  carriers  subject  to  the  interstate  Com- 
merce Acts.  Any  examiner  who  divulges  any  fact  or  informa- 
tion which  may  come  to  his  knowledge  during  the  course  of  ex- 
aminations made  by  him,  except  in  so  far  as  he  may  be  directed 
by  the  Commission  or  by  a  court  or  Judge  thereof,  is  guilty  of 
a  crime  and  subject  to  a  fine  of  not  more  than  five  thousand  dol- 
lars, or  imprisonment  for  a  term  not  exceeding  two  years,  or 
both. 

And  to  carry  out  and  give  efifect  to  the  provisions  of  the  Acts 
Regulating  Interstate  Commerce  or  any  of  them,  the  Commis- 
sion may  employ  special  agents  or  examiners  "who  shall  have 

""  Interstate  Com.  Com.  v.  Good-  ''^  Kansas    City    S.    Ry.    Co.    v. 

rich  Transit  Co.,  244  U.  S.  194,  56  United   States,   231   U.   S.   423,   58 

L.  Ed.  729,  32  Sup.  Ct.  436,  revers-  L.    Ed.    296,   34   Sup.    Ct.    125,    af- 

ing   Goodrich  Transit   Co.   v.   In-  firming    same    styled     case,     204 

terstate  Com.  Com..  190  Fed.  943,  Fed.   641,   Opinion    Com.   Ct.   No. 

Opinion    Com.    St.    Nos.   21-24,   p.  56,   p.   641. 
95. 


§  237.]  OF  THE  Act  to  Regulate  Commerce.  365 

power  to  administer  oaths,  examine  witnesses,  and  receive  evi- 
dence." 

Under  these  provisions,  accountants  are  appointed  as  spe- 
cial examiners  to  examine  the  accounts  and  records  of  the  car- 
riers for  the  purpose  of  obtaining  information  to  enable  the 
Commission  to  perform  its  duties  in  the  enforcement  of  the  stat- 
ute, and  to  aid  in  valuing  the  property  owned  or  used  by  carriers 
subject  to  the  Act. 

There  are  examiners  who  hear  the  evidence  and  submit  reports 
to  the  Commission  in  general  investigations  made  by  the  Com- 
mission and  where  complaints  are  brought  before  the  Commis- 
sion. These  act  somewhat  as  masters  in  chancery  and  of  these 
there  are  the  special  examiners  and  the  attorney-examiners,  the 
latter  hearing  evidence  in  the  more  important  cases. 

§  237.  Reports  of  the  Commission. — In  addition  to  reports 
of  investigations  made  by  it,  "the  Commission  shall,  on  or  before 
the  first  day  of  December  in  each  year,  make  a  report,  which 
shall  be  transmitted  to  Congress,  and  copies  of  wdiich  shall  be 
distributed  as  are  the  other  reports  transmitted  to  Congress. 
This  report  shall  contain  such  information  and  data  collected  by 
the  Commission  as  may  be  considered  of  value  in  the  determina- 
tion of  questions  connected  with  the  regulation  of  commerce, 
together  with  such  recommendations  as  to  additional  legislation 
relating  thereto  as  the  Commission  may  deem  necessary;  and  the 
names  and  compensation  of  the  persons  employed  by  said  Com- 
mission." 

§  238.  Lake  Erie  and  Ohio  River  Ship  Canal.— Section  17 
of  the  Act  to  incorporate  the  Lake  Erie  and  Ohio  River  ship 
canal  provides  that  canals  constructed  thereunder  shall  be  open 
to  the  use  and  navigation  of  all  suitable  and  proper  vessels  or 
other  water  craft  upon  fair  and  equal  terms,  conditions,  rates, 
tolls  and  charges ;  but  all  charges,  rates,  and  tolls,  must  be  equal 
to  all  persons,  vessels  and  goods  under  "classifications"  to  be 
established  by  the  company  and  approved  by  the  Interstate  Com- 
merce Commission.  Rebates,  drawbacks  and  discriminations, 
whether  effected  directly  or  indirectly,  arc  prohibited  and  tariffs 
must  be  published,  and  not  changed  except  after  thirty  days  pub- 
lic notice ;  but  the  Commission  may  in  its  discretion  and  for 
good  cause  shown  permit  changes  on  less  notice  and  may  modify 
the  requirements  in  respect  to  publishing  and  posting  schedules. 


366  Enforcement  by  the  Commission  [§  239. 

§  239.  Parcel  Post.— The  statute  approved  August  24,  1912, 
authorized  the  Postmaster-General  to  reform  "subject  to  the  con- 
sent of  the  Interstate  Commerce  Commission  after  investiga- 
tion" the  classification  of  articles  mailable  as  well  as  the  weight 
limit,  the  rates  of  postage,  zone  or  zones,  and  other  conditions  of 
mailabihty  of  articles  under  the  law  creating  the  parcel  post. 

§  240.  Government  Aided  Railroads  and  Telegraph  Com- 
panies.— By  Act  August  7,  1888,  all  railroad  and  telegraph  com- 
panies to  which  the  United  States  has  granted  aid  are  required' 
to  construct,  maintain  and  operate  a  railroad  or  telegraph  line 
as  may  be  prescribed  by  the  act  of  incorporation,  and  furnish 
facilities  without  discrimination- 
Complaint  may  be  made  to  the  Commission,  or  the  Commis- 
sion may  act  without  complaint,  to  obtain  a  performance  of 
these  duties. 

Penalties  are  prescribed  for  a  failure  to  perform  the  duties 
required,  and  the  "party  aggrieved"  by  such  failure  may  recover 
damages. 

Reports  are  required  as  of  other  carriers  subject  to  the  Act. 

Information  may  be  given  the  Attorney-General  by  the  Inter- 
state Commerce  Commission,  upon  which  the  Attorney-General 
must  proceed  judicially  to  enforce  the  forfeitures  provided  in 
the  Act.  Congress  reserved  the  right  to  alter,  amend  or  repeal 
the  law. 

§  241.  Common  Law  Remedies,  Continued. — Nothing  in 
the  Act  contained  shall  in  any  way  abridge  or  alter  the  remedies 
now  existing  at  common  law  or  by  statute,  but  the  provisions 
of  the  Act  are  in  addition  to  such  remedies. 

The  above  provision  was  in  the  original  Act  of  1887,  and  has 
not  been  repealed  by  any  amendment  thereof  or  act  supplemental 
thereto. 

This  provision  must  be  construed  conformably  to  the  well 
established  canons  of  statutory  construction,  and  being  con- 
strued with  the  whole  law  as  required  by  such  canons,  it  must  be 
held  to  mean  that  where  a  common-law  right  can  not,  consistently 
with  the  general  purposes  of  the  statute,  be  enforced,  the  in- 
jured party  must  obtain  redress  under  and  in  accordance  with 
the  statute.  Any  other  construction  would  destroy  the  general 
scheme  intended  to  be  effected  by  the  enactment.  No  right  is 
taken  away,  but  where  a  method   for  determining  the  right  is 


§  241.]  OF  THE  Act  to  Regulate  Commerce.  367 

open  under  the  statute,  that  method  must  be  pursued  to  the  ex- 
clusion of  other  methods-  When  the  statute  furnishes  no  remedy 
for  a  wrong,  or  where  prehminary  administrative  action  is  un- 
necessary to  determine  the  right,  the  common  law  remedies  may 
be  sought.  1^- 

'*"  Mitchell  Coal  &  Coke  Co.  v.  Southern  Ry.  Co.  v.  Tift,  206  U. 

Pennsylvania    R.    Co.,    230    U.    S.  S.    428.    437,    51    L.    Ed.    1124,    27 

247,   57   L.   Ed.   1472,   33    Sup.    Ct.  Sup.    Ct.    709;    United    States    v. 

916;    Texas    &    Pac.    Ry.    Co.    v.  Pacific   &   Arctic   R.    Co.,   228   U. 

Cisco   Oil   Mill,  204  U.   S.   449,   51  S.   87,   57    L.   Ed.   743,  33   Sup.   Ct. 

L.  Ed.  562,  27  Sup.  Ct.  358;  Texas  443;    St.    Louis    S.    W.    R.    Co.   v. 

&  Pac.   Ry.    Co.  v.   Abilene   Cot-  Lewellen,  192  Fed.  540.     See  also 

ton    Oil    Co.,    204    U.    S.    426,    444,  Sees.   294,   297,  post. 
51    L.    Ed.    553,    27    Sup.    Ct.    350; 


CHAPTER  VI. 

Procedure  of  the  Interstate  Commerce  Commission. 

# 

242.  Scope    of    Chapter. 

243.  Swit(ih    Connections. 

244.  Relief  under  the   Fourth   Section. 

245.  Water    Competition. 

246.  Railroad   Owned   Steamships. 

247.  Changes   in   Tariffs. 

248.  Forms    of   Tariffs. 

249.  Through   Routes. 

250.  Complaints  for  Damages. 

251.  Same  Subject — Order  of  Commission. 

252.  General    Investigations. 

253.  Procedure   in    Formal    Cases — Complaint. 

254.  Notice   before   Hearing. 

255.  Formal    Complaints — Answer. 

256.  Hearings  by  the  Commission. 

257.  Orders    Relating   to   Rates   and    Practices. 

258.  Suspension   of  Rates. 

259.  Practices  in  Suspension  Cases  Where  There  Exist  Intrastate 

Rates  Lower  than  Proposed  Increased  Interstate  Rates. 

260.  The  Weak  and  the  Strong  Roads. 

261.  Other    Orders. 

262.  Service  of  Orders  of  the  Commission. 

263.  Rehearings  by  the  Commission. 

264.  Valuation   of   Property. 

265.  Oral   Argument. 

266.  Estoppel   by   Former  Order  of  the   Commission. 

267.  Rules    of   Procedure    Prescribed    by    the    Commission. 

268.  Sessions    of    the    Commission    to    Be   Public — Its    Offices    in 

Washington. 

269.  Parties. 

270.  Complaints. 

271.  Answer. 

272.  Motion  to  Dismiss  in  the  Nature  of  a  Demurrer. 

273.  Service  of  Papers. 

274.  Amendment  to   Pleadings. 

275.  Continuances. 

276.  Stipulations  Desirable  and  Must  Be  in  Writing. 

277.  Hearings. 

278.  Depositions,   How  Taken. 

279.  Attendance  of  Witnesses. 

280.  Documentary   Evidence. 

368 


§  242.]   Procedure  of  Interstate  Commerce  Commission.  369 

281.  Briefs  and   Oral   Argument. 

282.  Rehearings. 

283.  Free    Copies    of  Transcript   of   Evidence,   When   Furnished. 

284.  Orders  Must  Be  Complied  with  and  Notice  Thereof  Given  to 

the   Secretary  of  the  Commission. 

285.  Fourth   Section  Applications. 

286.  Suspension  of  Rate  Increases,  How  Obtained. 

287.  Secretary  to  Give  Information. 

288.  Address  of  the  Commission. 

289.  Form    of    Complaints. 

290.  Form  of  Answer. 

291.  Notice  of  Motion  to  Dismiss. 

§  242.  Scope  of  Chapter. — In  the  next  preceding  chapter 
there  is  a  discussion  of  the  powers  and  duties  of  the  Interstate 
Commerce  Commission.  From  this  statement  of  these  powers 
and  duties  it  was  seen  that  the  jurisdiction  of  the  Commission 
divides  itself  into  those  investigations,  (a)  which  have  to  do  with 
the  general  execution  of  the  Commerce  Acts  in  which  parties 
are  not  directly  involved  and  in  which  the  whole  public  is  in- 
terested, and  (b)  into  investigations  which,  while  afifecting  the 
whole  public,  more  directly  afifect  individuals  who  are  parties  to 
the  proceeding. 

It  is  the  purpose  of  this  chapter  to  discuss  the  procedural 
statutes  and  rules  adopted  and  used  in  each  of  these  kinds  of  in- 
vestigations. 

The  Interstate  Commerce  Commission  is  not  a  court,  and 
while  it  hears  testimony  from  which  it  reaches  conclusions  and 
while  some  of  its  forms  of  procedure  are  analogous  to  those  of 
a  court,  it  is  not  and  should  not  be  embarrassed  by  purely  tech- 
nical rules. 

§  243.  Switch  Connections. — To  invoke  the  authority  of  the 
Commission  with  reference  to  the  installation  and  operation  of 
switch  connections,  there  must  exist  a  failure  by  the  carrier  to 
perform  its  duty  in  this  respect,  an  application  in  writing  by  a 
shipper  tendering  interstate  trafific  for  transportation,  or  by  an 
owner  of  a  lateral  branch  line  of  railroad  making  complaint  as 
provided  in  section  13  of  the  Act.  Upon  which  complaint  the 
Commission  shall  hear  and  investigate  and  determine  as  to  the 
safety,  practicability  and  justification  of  such  connections  and 
the  reasonable  compensation  therefor-  After  which  the  Commis- 
sion may  make  an  order  directing  a  compliance  with  the  law 


370  Procedure  of  Interstate  Commerce  Commission.   [§  244. 

requiring  such  connection.^  The  Commission  can  not,  however, 
order  a  carrier  to  make  such  connection  when  to  do  so  it  must 
acquire  a  right  of  way  across  the  property  of  another  carrier. - 

In  requiring  connections  between  rail  Hues  and  the  dock  of  a 
water  carrier  the  Commission  has  full  authority  to  determine 
the  terms  and  conditions  upon  which  the  connecting  tracks, 
when  constructed,  shall  be  operated ;  and,  in  the  construction  or 
operation  of  such  tracks  it  may  determine  what  sum  shall  be 
paid  to  or  by  each  carrier.^ 

§  244.  Relief  under  Fourth  Section. — The  fourth  section 
of  the  Act  prescribes  a  relation  between  long  and  short  hauls 
and  between  through  rates  and  aggregates  of  the  intermediate 
rates.  The  section  gives  the  Commission  authority  to  grant  re- 
lief from  the  absolute  provisions  of  the  statute.  There  must  be 
an  application  to  the  Commission  by  the  carrier  showing  a  "spe- 
cial case,"  some  special  reason  for  the  relief,  upon  which,  after 
investigation,  the  carrier  may  be  authorized  "to  charge  less  for 
longer  than  for  shorter  distances ;"  and  the  Commission  may 
from  time  to  time  provide  the  extent  to  which  the  carrier  may 
be  relieved  from  the  operation  of  the  section.  The  first  state- 
ment of  authority  to  grant  relief  applies  to  that  part  of  the  sec- 
tion referring  to  the  long  and  short  haul ;  the  second  statement 
is  general  and  applies  to  the  "operation  of  the  section."  The 
making  of  the  application  stays  the  efifect  of  the  prohibition  "un- 
til a  determination  of  such  application  by  the  Commission.""* 

The  carriers  filed  over  five  thousand  two  hundred  applications 
with  the  Commission  pursuant  to  the  statute. 

There  is  nothing  in  the  "Act  prescribing  the  form,  contents 
or  breadth"  of  applications  filed  thereunder,  and  the  Commis- 
sion held  that  blanket  applications  covering  many  deviations 
from  the  statute  might  be  filed. ^ 

The  statute  does  not  give  arbitrary  power  to  the  Commission 
to  permit  or  refuse  exceptions,  but  its  action  "must  be  limited 
and  conditioned   upon   the   presence   in   special  cases   of   condi- 

'Sec.    1   of   Act;   Sec.   344,   post.  *  Sec.   4   of  Act;    Sec.   350.   post. 

'  Consolidated     Pump      Co.     v.  ^  Southern       Furniture       Mnfg. 

Lake  Shore  &  M.  S.  Ry.  Co.,  27  Assn.  v.   Southern   Ry.   Co..  25   I. 

I.    C.    C.    519.  C.    C.    379,    381.      See    Rule    IS    of 

^  Sec.   6  of  Act;   Sec.   370.  post;  the    Rules    of    Practice     of     the 

Re    Wharf     Facilities    at    Pensa-  Commission;   Sec.   285.  post. 
cola,    Fla.,   27   I.   C.   C.   252,   260. 


§  244.]   Procedure  of  Interstate  Commerce  Commission.  371 

tions  and  circumstances  which  would  make  such  exceptions 
legal  and  proper  and  in  no  wise  antagonistic  to  the  other  pro- 
visions of  the  Act."  •' 

That  Congress  could  make  an  absolute  prohibition  of  a  greater 
charge  for  a  longer  haul  than  for  the  shorter,  was  stated  by  the 
Commission  discussing  the  procedure  under  the  section,  and  it 
Avas  said  that  the  burden  of  proof  was  on  the  carrier  seeking  re- 
lief from  the  statutory  general  rule,  a  burden  that  required  proof 
not  only  of  the  cause  of  the  lower  rate  at  the  longer  distance 
point  "but  of  the  reasonableness  of  the  rates  applied  to  inter- 
mediate points.""  It  has  already  been  shown  that  the  reason- 
ableness of  the  rate  to  the  intermediate  point  must  be  con- 
sidered, and  in  addition  to  that  factor  the  Commission  considers 
water  ^  and  market  competition  "'  and  the  fact,  if  a  fact,  that  the 
road  reaching  the  longer  distance  point  is  a  circuitous  route. ^*^ 
Mere  railway  competition  was  said  to  be  ineffective  to  meet  the 
burden  on  the  carriers.  The  Commission,  speaking  of  such  com- 
petition and  the  resulting  violation  of  the  Act,  said : 

°  Railroad    Com.    of    Nevada  z\  Rates    to    Ohio    River    Crossings, 

Southern    Pac.    Co.,    21    I.    C.    C.  25  I.   C.  C.  50. 
329,  341;  Bluefield  Shippers  Assn.  "Kellogg  Toasted  Corn  Flakes 

v.   Norfolk   &  W.   Ry.   Co.,   22    I.  Co.  r.  Michigan  Cent.   R.  Co.,  24 

C.    C.    519,    530;    Inter    Mountain  I.    C.    C.    604;    Re    Lumber    Rates 

Rate   Cases,   234  U.   S.  476,   5S   L.  to  Ohio  River  Crossings,  25  I.  C. 

Ed.    1408,   34   Sup.    Ct.   9S6.  C.  50,  59.     In  each  of  these  cases 

'  Re  Application  Southern  Pac.  the  efifectiveness  of  market  com- 
Co.,  Long  and  Short  Haul  petition  was  considered  and  de- 
Docket  1243,  22  I.   C.   C.  366,  374.  cided. 

See  also   as   to  burden   of  proof:  ^"Wright    Wire     Co.    v.    Pitts- 

Bluefield   Shippers  Association  v.  burg   &   L.    E.    Ry.    Co.,   21    I.    C. 

Norfolk   &  W.   Ry.   Co.,  22   I.   C.  C.     64,     quoting    Judge     Cooley's 

C.    519,    530;    Janesville    Clothing  opinion  first  construing  the  origi- 

Co.  V.  Chicago  &  N.  W.  Ry.  Co.,  nal    Fourth    Section;    Gile    &   Co. 

26  I.  C.  C.  628;  Commercial  Club  v.  Southern  Pac.  Co.,  22  I.  C.  C. 

of  Duluth  V.  Baltimore   &  O.   R.  298.  302;  Re  Rates  on  Salt,  24  I. 

Co.,  27  I.  C.  C.  639,  660.  C.  C.  192,  195;   Edwards  &  Brad- 

'  Re    Transportation    of   Wood,  ford   Lumber   Co.  v.   Chicago,   B. 

Hides   and   Pelts.   Railroad    Com.  &  Q.   R.   Co.,  25   I.   C.   C.  93,  95, 

of    Oregon    v.    Oregon    R.    &    N.  holding    that    a    route    exceeding 

Co.,  23  I.  C.  C.  151,  179;  Bowling  the  short  line  by  15  per  cent  was 

Green  Business  Men's  Protective  a     circuitous     route.       See     also 

Assn.  V.  Louisville   &  N.   R.   Co.,  Fourth     Section     Application     in 

24  I.   C.   C.   228,   240;   Re   Lumber  the  Southeast,  30  I.   C.  C.   153,  32 

I.    C.    C.   61. 


Z71  Procedure;  of  Interstate  Commerce  Commission.   [§  245. 

"So  far  as  the  facts  before  lis  disclose,  this  condition  has  been 
brought  about  entirely  by  competition  between  different  railways 
serving  New  Orleans.  If  no  other  element  enters  into  the  situ- 
ation this  would  probably  be  wrong."^^ 

§  245.  Water  Competition. — The  last  paragraph  of  section 
4  which  prohibits  carriers  from  increasing  rates  which  have  been 
lowered  to  meet  water  competition  "unless  after  hearing  *  *  ^■ 
it  shall  be  found  that  such  proposed  increase  rests  upon  changed 
conditions  other  than  the  elimination  of  water  competition,"  not 
only  puts  the  burden  on  the  carriers,  but  limits  the  reasons  which 
are  valid  explanations  of  the  increase  by  excluding  as  one  of 
such  "the  elimination  of  water  competition." 

In  order  to  make  such  increase  the  Commission  must  consent 
after  hearing. 

Suspension  of  lake  navigation  during  the  winter  months  is  not 
an  elimination  of  water  competition,  and  during  these  months 
higher  rail  rates  may  be  justitied,^-  although  the  explanation 
seems  unsatisfactory. 

Whether  or  not  the  paragraph  puts  the  burden  of  justifying 
increases  of  rates  that  were  lowered  prior  to  the  Amendment  en- 
acting it,  effective  June  18,  1910,  is  immaterial,  as  that  burden 
exists  to  all  rates  advanced  since  January  1,  1910,  by  virtue  of 
section  15.^^ 

§  246.  Railroad  Owned  Steamships. — A  rail  carrier  may 
not  own  or  control  a  water  carrier  in  competition  therewith, i"* 
but  jurisdiction  is  conferred  upon  the  Commission  to  "determine 
questions  of  fact  as  to  the  competition  or  possibility  of  competi- 
tion" upon  application  of  a  railroad  company  or  other  company 
praying  for  an  order  permitting  the  continuance  of  such  owner- 
ship or  control  of  vessels  already  in  operation  or  permitting  the 
installation  of  new  service- 

The  Commission  may  on  its  own  motion  make  such  investiga- 
tion and  enter  an  order  thereon.  There  must  be  a  hearing  and 
the  order  of  the  Commission  is  made  final.  On  such  hearing, 
if  the  Commission  shall  be  of  the  opinion  that  any  such  exist- 
ing service  by  water  "other  than  through  the  Panama  Canal  is 

^^  Re    Transportation    Lime,    24  "  Re  Pig  Iron  Rates  from  Vir- 

I.  C.  C.  170,  172.  ginia,   27    I.    C.    C.   343,   345. 

''American    Insulated    Wire    &  "Sec.  5  of  Act;   Sec.  203  ante; 

Cable    Co.   v.    Chicago    &   N.    W.  Sec.   353,  post. 
Ry.   Co.,  26   I.   C.    C.  415,  416. 


§  247.]   Procedure  of  Interstate  Commerce  Commission.  373 

being  operated  in  the  interest  of  the  pubHc  and  is  of  advantage 
to  the  convenience  and  commerce  of  the  people,  and  that  such 
extension  will  neither  exclude  nor  reduce  competition,"  it  may 
extend  the  time  during  which  such  carrier  controlled  water  ves- 
sels may  be  so  operated.  The  water  carriers  must  in  that  event 
file  tariffs  of  their  rates,  schedules  and  practices.  Such  appli- 
cations must  be  made  before  July  1,  1914,  but  may  be  considered 
and  disposed  of  thereafter.^^ 

§  247.  Changes  in  Tariffs. — Changes  in  rates,  fares  and 
charges  or  joint  rates,  fares  and  charges,  may  not  be  made  ex- 
cept after  thirty  days  notice  to  the  Commission  and  to  the  pub- 
lic, but  the  Commission  is  granted  a  discretion  "for  good  cause 
shown"  to  allow  changes  on  less  notice,  and  may  modify  the  re- 
quirements in  respect  to  publishing,  posting  and  filing  tariffs. 
This  may  be  done  in  particular  instances  or  by  general  order.^^ 

Speaking  of  this  provision  the  Commission  said:  "It  is  be- 
lieved that  this  authority  should  be  exercised  only  in  instances 
where  special  or  peculiar  circumstances  or  conditions  fully  jus- 
tify it.  Confusion  and  complication  must  follow  indiscrim- 
inate exercise  of  this  authority."  Clerical  or  typographical  er- 
rors constitute  good  cause. i" 

General  orders  permit  the  reduction  of  a  through  rate  to  the 
aggregate  of  the  intermediate  locals  and  the  filing  of  tariffs  by 
new  roads  in  less  than  thirty  days.^^ 

§  248.  Forms  of  Tariffs. — The  power  granted  the  Commis- 
sion to  determine  and  prescribe  the  form  of  tariff  schedules  and 
to  change  that  form  when  expedient  has  been  exercised  by  pre- 
scribing rules  in  Tariff  Circular  No.  18-A  and  supplements 
thereto.  The  purpose  of  these  rules  is  to  make  definite  and  as- 
certainable the  rules  which  are  in  force. 

§  249.  Through  Routes'. — After  full  hearing,  on  complaint, 
or  upon  its  own  initiative  without  complaint,  the  Commission 
may  establish  through  routes  and  maximum  joint  rates  between 
rail  and  water  lines. ^^ 

Where  a  rail  carrier  enters  into  arrangements  with  any  water 

'"Sec.  5  of  Act;   Sec.  355,  post.  plication   to   exercise   the   autlior- 

Sec.    203,   ante.  ity. 

"Sec.  6  of  Act;    Sec.  360,  post.  "Tariff    Circular   18a,   Rules   56 

"Tariff    Circular    18a,    Rule    58,  and    57.                                       , 

also    prescribing    a    form    of    ap-  "  Sec.  377,  post. 


374  Procedure  of  Interstate  Commerce  Commission.   [§  250. 

carrier  operating  from  a  port  of  the  United  States  through  the 
Panama  Canal  or  otherwise  for  the  handHng  of  through  business 
between  interior  points  in  the  United  States  and  such  foreign 
country,  similar  arrangements  may  be  required  with  any  or  all 
other  lines  of  steamships  operating  from  the  same  port  to  the 
same  foreign  country.-*' 

Orders  with  reference  to  action  authorized  as  herein  stated 
shall  be  served  and  enforced  as  orders  under  section  15  of  the 
Act  -1  and  may  "be  conditioned  for  the  payment  of  any  sum 
or  the  giving  of  security  for  the  payment  of  any  sum  or  the  dis- 
charge of  any  obligation  wdiich  may  be  required  by  the  terms 
of"  the  order.22 

Power  is  also  given  the  Commission,  after  hearing,  with  or 
without  complaint,  to  establish  through  routes  and  joint  classi- 
fications and  joint  rates  and  the  divisions  thereof,  when  there  is 
a  failure  of  the  carriers  so  to  do.  This  does  not  apply  to  connec- 
tion between  street  electric  passenger  railways  not  engaged  in 
the  general  business  of  transporting  freight  and  railroads  of  a 
different  character.  In  establishing  such  through  route  reference 
must  be  had  to  the  entire  line  of  a  carrier.^s 

Subject  to  the  limitation  stated  in  the  statute  the  Commission 
has  a  discretion  as  to  when  it  will  order  through  routes.-'*  The 
complainant  asking  for  a  through  route  should  show  himself 
"capable  financially  and  physically"  of  assuming  the  obligations 
such  routes  would  impose. ^^ 

In  fixing  the  divisions  between  the  carriers  the  Commission 
must  "take  into  consideration  all  the  circumstances,  conditions,  and 
equities-"^*' 

§  250.  Complaints  for  Damages. — In  claims  for  damages 
a  complaint  must  be  filed  with  the  Commission.     This  complaint 

="Sec.   G  of  Panama   Canal  Act,  ton   &  W.   C.   R.   Co.,  27   I.   C.   C. 

par.    (b)  ;   Sec.   377,  post.  275. 

^Sec.   6  of  Act,   par.    (d);   Sec.  ^Truckers      Transfer      Co.      v. 

379,  post.  Charleston  &  W.  C.  R.  Co.,  27  I. 

'"Last    par.    Sec.    6;    Sec.    380,  C.    C.   275;    Enterprise   Transpor- 

post.  tation    Co.    v.    Pennsylvania     R. 

""Sec.  15  of  Act;  Sec.  195,  ante;  Co.,   12   I.    C.   C.   326. 

Sec.   401,  post.  ^'Star   Grain   &  Lumber   Co.  v. 

=' Crane  Iron  Works  v.  United  Atchison,  T.  &  S.  F.  Ry.  Co.,  14 

States,    209    Fed.    238,    Com.    Ct.  I.    C.    C.   364.   370.      See   also   Sec. 

Opinion  No.  55,  p.  453,  461,  cited,  196.  ante. 
Truckers  Transfer  Co.  v.  Charles- 


§  250.]   Procedure  o?  Interstate  Commerce  Commission.  375 

frequently  seeks  to  have  a  particular  rate  or  practice  declared 
illegal,  and  in  the  same  complaint  asks  for  an  order  fixing  the 
Commission's  finding  as  to  the  amount  of  damages  the  com- 
plainant is  entitled  to  recover.  It  is  not  proper  to  divide  up  a 
complaint  by  first  asking  a  finding  that  the  rate  or  practice 
is  illegal,  and  thereafter,  by  supplemental  complaint,  seek  dam- 
ages.2^ 

Many  informal  complaints  for  damages  are  filed  and  allowed. 
These  are  in  cases  where  the  carriers  concede  that  an  award 
should  be  made.-^  Informal  complaints  are  sufficient  to  give 
the  Commission  jurisdiction.-^  The  general  principles  applica- 
ble to  the  question  are  stated  by  the  Commission  to  be  the  in- 
tent of  Congress  to  provide  a  method  of  obtaining  an  award  of 
damages  without  resort  to  the  expensive  and  tedious  processes 
of  the    law,  and    that  the  Act    should    be    construed    with  that 


view 


30 


Conference  ruling  206  prescribes  rules  which  have  been  form- 
ulated by  the  Commission  and  to  which  it  adheres.  The  im- 
portance of  the  question  and  the  fact  that  these  rulings  are  not 
always  available  justify  copying  that  part  of  ruling  206  applica- 
ble to  this  question : 

(c)  Reparation  will  not  ordinarily  be  awarded  in  a  formal 
case  attacking  a  rate  as  unreasonable  or  otherwise  in  violation  of 
law  unless  intent  to  claim  reparation  is  specifically  disclosed 
therein,  or  in  an  amendment  thereto,  filed  before  the  submis- 
sion of  said  case.  The  Commission  may,  however,  in  the  ex- 
ercise of  its  discretion,  upon  good  cause  shown,  and  under  un- 
usual circumstances,  deal  specially  with  a  particular  claim  for 
reparation. 

(d)  Claims  for  reparation  based  upon  a  decision  of  the  Com- 
mission filed  by  complainants  not  parties  to  the  case  in  which 
such  decision  was  rendered  will  not  ordinarily  be  allowed  unless 
reparation  was  claimed  in  the  complaint  upon  which  such  deci- 

"  Dallas  Freight  Bureau  v.  Gulf,  C.    441;     Mountain     Ice      Co.     v. 

C.   &  S.   F.   Ry.    Co.,   12   I.   C.   C.  Delaware,    L.    &  W.    Ry.    Co.,   21 

223,   228.  I.    C.   C.   45. 

^  Conference    Ruling    396.    Feb.  ^^  Michigan     Hardwood     Mnfrs. 

10,   1913.  Assn.  v.  Transcontinental  Freight 

'"Marian     Coal     Co.     v.     Dela-  Bureau,  27  I.  C.  C.  32,  37. 
ware,  L.  &  W.  Ry.   Co..  27  I.   C. 


376.  Procedure  of  Interstate  Commerce  Commission.   [§  251. 

sion  of  the  Commission  was  based,  or  was  awarded  by  the  Com- 
mission. The  Commission  may,  however,  in  the  exercise  of  its 
discretion,  upon  good  cause  shown,  and  under  unusual  circum- 
stances, specially  consider  a  particular  claim  for  reparation  of 
this  class. 

(e)  Complaints  for  reparation  must  disclose  as  nearly  as 
possible  all  the  claims  of  complainant  or  complainants  covered 
by  or  involved  in  the  complainant,  except  that  when  a  general 
rate  adjustment  or  a  rate  under  which  many  shipments  have 
been  made  to  many  destinations,  or  from  many  points  of  origin 
by  many  shippers,  is  involved,  complainant  may  contain  specific 
prayer  for  reparation  on  all  shipments,  and  the  proving  up  as  to 
shipments  and  amounts  of  reparation  due  thereon  be  left  until 
the  questions  of  the  reasonableness  of  the  rate  or  rates  and 
whether  or  not  reparation  will  be  awarded,  have  been  decided. 
And  each  claimant  for  reparation  under  a  decision  that  has  been 
rendered  must  include  all  his  shipments  and  claims  in  one  com- 
plaint or  statement. 

For  rules  as  to  formal  complaints  see  post,  section  270. 

§  251.  Same  Subject — Order  of  Commission. — Until  the 
act  complained  of  is  found  to  be  violative  of  the  law  no  award 
of  damages  can  be  made.  In  the  procedure  before  the  Commis- 
sion evidence  is  heard  as  to  the  illegality  of  the  rate,  regulation 
or  practice  under  investigation  and  as  to  the  fact  of  damages. 
If,  after  the  hearing,  it  is  found  that  complainant  or  one  in  whose 
behalf  the  complaint  is  filed  has  suffered  injury  by  a  violation 
of  the  law  and  the  fact  of  legal  damage  is  established,  the  Com- 
mission directs  how  proof  of  the  amount  of  damages  shall  be 
made,  and  when  such  amount  is  ascertained  an  order  therefor 
is  made.  What  must  be  shown  to  fix  this  amount  is  stated  by 
the  Commission  as  follows : 

"The  complainants  will  be  expected  to  prepare  statements 
showing  as  to  each  shipment  upon  which  reparation  is  claimed, 
the  date  of  movement,  the  point  of  origin,  the  point  of  destina- 
tion, the  route,  the  weight,  the  car  number  and  initials,  the  rate 
applied,  the  charges  collected,  and  the  amount  of  reparation 
claimed.  These  statements,  with  the  freight  bills  covering  the 
shipments,  should  be  submitted  to  the  defendants  for  verifica- 
tion by  them.  Upon  the  receipt  of  statements  so  prepared  by 
the  complainants  and  verified  by  the  defendants,  the  Commis- 


§  252.]   Procedure  of  Interstate  Commerce  Commission.  Z71 . 

sion  will  take  the  matter  up  with  a  view  to  the  issuance  of  an  or- 
der of  reparation. "21 

In  case  damages  are  awarded  the  Commission  must  make  a 
report  and  state  the  findings  of  fact  on  which  the  award  is 
made,^-  and  on  a  trial  in  court  to  recover  on  such  award  the  find- 
ings of  fact  set  forth  in  such  report  shall  be  prima  facie  evidence 
of  the  matters  therein  stated.^^ 

§  252.  General  Investigation. — In  the  exercise  of  its  power 
to  obtain  complete  information  necessary  to  enable  it  to  perform 
the  duties  and  carry  out  the  objects  for  which  it  was  created, 
the  Commission  makes  investigations  into  the  management  of 
the  business  of  the  carriers  subject  to  the  provisions  of  the 
Commerce  Acts.  This  authority  extends  to  any  matter  or  thing 
concerning  which  a  complaint  is  authorized  to  be  made  or  about 
which  any  question  may  arise  or  which  relates  to  the  enforce- 
ment of  any  provisions  of  the  Act.^'* 

No  particular  form  of  procedure  is  prescribed  for  these  in- 
vestigations, but  in  a  similar  kind  of  investigation,  that  fixing 
accounting  regulations,  the  Supreme  Court  stated  as  a  material 
fact  that  the  investigation  proceeded  "with  due  deliberation  and 
after  proper  inquiry. "^^  The  Bills  of  Lading  and  Industrial 
Railways  Cases  are  illustrative  of  investigations  without  formal 
complaint.^*^ 

§  253.  Procedure  in  Formal  Cases — Complaint. — The 
rules  relating  to  formal  complaints  and  the  form  thereof  are 
stated  in  subsequent  sections  of  this  chapter.^'''  By  conference 
ruling  the  Commission  has  provided  that  complaints  involving 
the  same  or  substantially  the  same  principle,  subject  or  state  of 
facts  should  be  included  in  one  complaint ;  that  where  the  princi- 
ple involved  or  the  state  of  facts  is  substantially  the  same,  two 
or  more  complainants  may  join  against  two  or  more  carriers  in 

"Standard  Mirror  Co.  v.  Penn-  '^  Kansas    City    S.    Ry.    Co.    v. 

sylvania  R.   Co.,  27   I.   C.    C.  200,  United   States,  231   U.   S.   423,   58 

209.  L.    Ed.    296,    34    Sup.    Ct.    125. 

''Sec.  14  of  Act;  Sec.  394,  post.  '"Re   Bills   of  Lading,   14   I.    C. 

''Sec.  16  of  Act;  Sec.  406,  post;  C.  340;   Re  Bills  of  Lading,  29  I. 

Lehigh    Valley    R.    Co.   v.    Clark,  C.    C.    417;    Industrial    Railways 

207   Fed'.   717,    125    C.    C.   A.   233;  Case,  29  I.  C.  C.  212;  Second  In- 

Mills    V.    Lehigh    Valley    R.    Co.,  dustrial   Railways    Case,   34   I.    C. 

238    U.    S.    473,    59    L.    Ed.    — ,    35  C.    596. 

Sup.    Ct.   888.  "  Sees.   268,   et  seq. 

^  Ante,  Sees.  219,  220. 


378  Procedure  of  Interstate  Commerce  Commission.   [§  254. 

one  complaint,  and  where  in  such  cases  two  or  more  complaints 
have  been  filed  they  may  be  consolidated  and  heard  together.^^ 
Amendments  are  freely  allowed,  even  to  the  extent  of  claiming 
reparation  when  there  is  no  claim  therefor  in  the  original  com- 
plaint.^^ 

While  the  Commission's  practice  is  in  no  degree  technical,  is- 
sues not  clearly  raised  in  the  pleadings  can  not  be  determined  by 
it.-*^  Good  faith  both  on  the  part  of  the  complainants  and  de- 
fendants demands  that  the  formal  pleadings  shall  be  sufficiently 
full  to  disclose  the  claim  or  the  answer  thereto.  For  a  defend- 
ant in  its  answer  to  say  that  it  neither  admits  nor  denies  an  al- 
legation the  truth  or  falsity  of  which  could  be  determined  from 
its  records,  is  not  to  deal  frankly  with  Commission  or  complain- 
ant, and  the  complaint  should  be  sufficiently  definite  to  inform 
the  defendant  what  rate,  rule  or  practice  is  complained  against 
and  upon  what  is  based  the  claim  of  illegality. 

§  254.  Notice  before  Hearing. — To  constitute  that  full  hear- 
ing required  by  the  statute  notice  must  be  given  to  the  carrier 
directly  aftected.  Where  a  complaint  is  filed  a  statement  thereof 
must  be  forwarded  to  the  carrier  complained  against,  "who  shall 
be  called  upon  to  satisfy  the  complaint,  or  to  answer  the  same  in 
writing."'*  1 

In  hearings  without  formal  complaint  where  an  order  against 
or  afifecting  a  particular  carrier  or  carriers,  as  in  suspension  and 
similar  cases,  is  contemplated,  notice  must  be  given. 

Most  rate  situations  have  their  influence  on  other  rates  and, 
having  this  fact  in  mind,  objection  was  made  to  an  order  of  the 
Commission  because  all  carriers  thus  aftected  were  not  served 
with  notice.    Replying  to  the  contention,  the  court  said : 

"It  is  obvious  that  the  purpose  was  to  require  that  notice 
should  be  given  to  the  party  immediately  interested,  and  not  to 
those  remotely  concerned.  It  is  a  novel  and  unreasonable  prop- 
osition that,  when  rates  in  a  given  locality  are  drawn  in  con- 

"*  Conference  Ruling  206.  6   I.   C.   C.  647;   Sinclair  &   Co.   v. 

'"Virginia-Carolina        Chemical  Chicago,    M.    &    St.    P,    Ry.    Co.. 

Co.   V.   St.   Louis,    I.    M.    &   S.   R.  21  I.   C.   C.  490;   Board   of  Trade 

Co.,   18   I.   C.   C.   1;  Virginia-Car-  of  Chicago  v.  Atchison,  T.   &  S. 

olina    Chemical    Co.    v.    Chicago,  F.  R3-.   Co.,  29   I.   C.   C.  438,  444. 

R.  I.  &  P.  Ry.  Co.,  18  I.  C.  C.  3.  "Sec.  13  of  Act:  Sec.  392,  post; 

'"'  Commercial    Club    of    Omaha  Pels    &    Co.    r.    Pennsylvania    R. 

V.    Chicago,   R.    I.    &   P.    Ry.    Co..  Co.,   23   I.    C.    C.   4S3,   486. 


§  255.]   Procedure  of  Interstate  Commerce  Commission.  379 

troversy,  notice  must  be  given  to  every  carrier  who  may  be  in 
the  succession  of  all  or  any  interstate  transportation  which 
includes  that  in  question.  The  procedure  prescribed  is  analogous 
to  that  in  all  legal  controversies,  and  must  be  deemed  sufficient. 
The  objections  must  be  overruled. 

"If  such  an  order  as  is  here  contested  were  to  be  held  to  be 
beyond  the  power  of  the  commission,  and  that  precedent  were 
to  be  followed,  its  functions  would  be  frittered  away,  piecemeal, 
and  the  result  must  be  that  the  power  to  regulate  rates  through 
the  means  provided  by  the  statute  would  be  so  absurdly  inade- 
quate as  to  furnish  no  reason  for  its  existence. "■*- 

Speaking  of  the  same  question  the  Commission  said : 

"The  fact  that  all  of  the  carriers  operating  in  the  Mesaba  dis- 
trict and  all  of  the  carriers  and  parties  interested  in  the  ore  rates 
are  not  made  parties  to  this  proceeding  is  immaterial  in  its  bear- 
ing upon  the  legality  of  this  complaint.  A  complainant  can  not 
be  expected  to  search  public  and  private  records  with  the  view 
of  discovering  all  parties  that  may  be  interested  in  a  certain  pro- 
ceeding. Full  publicity  attends  every  step  of  all  proceedings  before 
the  Commission,  and  it  must  be  assumed  that  parties  interested 
will  take  notice  of  what  is  going  on.  Other  parties  interested 
may  intervene  in  the  present  proceeding  if  they  so  de- 
sire."^^ 

§  255.  Formal  Complaints — Answer. — The  statute  requires 
the  defendant  to  answer  the  complaint  in  writing,  but  neither  the 
statute  nor  the  rule  of  the  Commission  hereinafter  given  states 
the  substance  of  what  the  answer  shall  contain.  The  word  itself 
connotes  the  idea  of  stating  what  the  facts  are  with  reference 
to  the  allegations  of  the  complaint.  This  answer  is  due  "within 
a  reasonable  time,"  to  be  specified  by  the  Commission,  the  time 
being  specified  in  the  rule  of  the  Commission  as  thirty  days  after 
service  by  defendants  whose  general  offices  are  wxst  of  El  Paso, 

'' Louisville  &  N.  R.  Co.  I'.  Int.  "  Lum    v.    Great    Northern     R. 

Com.  Com.,  184  Fed.  118,  127,  128.  Co.,  21  I.  C.  C.  558,  561,  562.     And 

For    further   history    of   the    case  see,    Whiteland    Canning    Co.   v. 

see,    Louisville    &    N.    R.    Co.    v.  Pittsburg,  C.  C.  &  St.  L.  Ry.  Co., 

Int.    Com.    Com.,    195    Fed.    541,  23  I.   C.  C.  92,  93.     But  a  partici- 

Opinion    Com.   Ct.   No.   4,   p.  235,  pating  carrier  to  a  tarifif  attacked 

375;  Int.  Com.  Com.  v.  Louisville  is   a  necessary  party,   Reno   Gro- 

&  N.   R.  Co.,  227  U.  S.  88,  57  L.  eery   Co.   v.   Southern   Pac,  23   I. 

Ed.    431,    33    Sup.    Ct.    185.  C.   C.   400. 


380  Procedure  of  Interstate  Commerce  Commission.   [§  256. 

Texas,  Salt  Lake,  Utah,  or  Spokane,  Washington,  and  twenty- 
days  by  all  other  defendants. ^-^ 

No  technical  demurrer  is  necessary  but  the  legal  sufficiency  of 
the  complaint  may  be  determined  on  a  motion  to  dismiss,  the 
practice  being  analogous  to  Federal  Equity  Rule  29. 

The  statute  provides  that,  "no  complaint  shall  at  any  time  be 
dismissed  because  of  the  absence  of  direct  damage  to  the  com- 
plainant," so  a  motion  to  dismiss  the  complaint  of  one  not  then 
a  shipper,  but  professing  an  intention  to  become  such,  was  de- 
nied ;  nor  does  the  complainant  have  to  come  before  the  Commis- 
sion with  clean  hands  as  in  a  court  of  equity.^^ 

§  256.  Hearing's  by  the  Commission. — When  complaint  is 
filed  and  served,  the  Commission  is  given  discretion  "to  investi- 
gate the  matters  complained  of  in  such  manner  and  by  such 
means  as  it  shall  deem  proper."  ^*^  On  all  hearings  the  Commis- 
sion has  "power  to  require,  by  subpoena,  the  attendance  and  tes- 
timony of  witnesses  and  the  production  of  all  books,  papers, 
tariffs,  contracts,  agreements  and  documents  relating  to  any  mat- 
ter mider  investigation.  Such  attendance  of  witnesses,  and  the 
production  of  such  documentary  evidence,  may  be  required  from 
any  place  in  the  United  States,  at  any  designated  place  of  hear- 
ing. The  claim  that  testimony  may  incriminate  the  witness  is 
no  excuse  for  not  testifying,  but  the  witness's  testimony  shall 
not  be  used  against  him  on  the  trial  of  any  criminal  proceed- 
ing."*' Testimony  may  be  taken  by  depositions  at  the  instance 
of  any  party,  or  by  order  of  the  Commission.-*^  Witnesses  sum- 
moned before  the  Commission  are  entitled  to  the  same  fees  and 
mileage  as  are  paid  witnesses  in  the  courts  of  the  United  States.-*^ 

The  Commission  is  very  liberal  in  its  practice  with  reference 
to  admitting  testimony,  '"and,'"  said  Mr.  Justice  Lamar,  speaking 
the  opinion  of  the  Supreme  Court,  "is  not  limited  by  the  strict 
rules,  as  to  the  admissibility  of  evidence,  which  prevail  in  suits 
by  private  parties."  In  the  same  case  it  was  said :  '"But  the 
statute  gave  the  right  to  a  full  hearing,  and  that  conferred  the 

"See     Rules     of     Commission,  ''Sec.  12  of  Act;  Sec.  390,  post; 

Sees.   268,    ct  seq.     This    chapter;  Sec.   3    of    Elkins  Act;    Sec.  post, 

Sec.  13  of  Act:  Sees.  392,  post.  457:  Compulsory  Testimony  Act, 

"Lum    V.    Great    Northern    R.  post,  4:SQ;  Immunity  of  Witnesses 

Co.,    21    I.    C.    C.    553.  Act.   Sec.  479,  post. 

"Sec.  13  of  Act:  Sec.  393,  post.  '''Sec.  12  of  Act;  Sec.  390,  post. 

"Sec.  18  of  Act;  Sec.  418,  post. 


§  257.]   Procedure  of  Interstate  Commerce  Commission.  381 

privilege  of  introducing  testimony,  and  at  the  same  time  imposed 
the  duty  of  deciding  in  accordance  with  the  facts  proved.  A 
finding  without  evidence  is  arbitrary  and  baseless.  *  *  *  All 
parties  must  be  fully  apprised  of  the  evidence  submitted  or  to 
be  considered,  and  must  be  given  opportunity  to  cross-examine 
witnesses,  to  inspect  documents,  and  to  offer  evidence  in  explana- 
tion or  rebuttal."  ■''" 

The  same  principles  were  applied  by  the  Supreme  Court  in 
another  case,  in  which  it  was  indicated  that  parties  were  not 
bound  by  findings  based  upon  specific  investigation  made  in  a 
case  without  notice  to  them.^i 

Any  party  may  appear  before  the  Commission  and  be  heard, 
in  person  or  by  attorney.  Every  vote  and  official  act  of  the 
Commission  shall  be  entered  of  record,  and  its  proceedings  shall 
be  public  at  the  request  of  either  party.  Any  one  of  the  mem- 
bers of  the  Commission  may  administer  oaths  and  affirmations 
and  sign  subpcenas.^- 

§  257.  Orders  Relating  to  Rates  and  Practices. — By  for- 
mal complaint  as  hereinbefore  stated,  or  on  its  own  initiative  in 
extension  of  a  complaint,  or  without  any  complaint  whatever, 
after  full  hearing,  the  Commission  when  "of  opinion"  that  any 
individual  or  joint  rates  or  charges  whatsoever  demanded,  charged 
or  collected,  or  that  any  individual  or  joint  classifications,  regu- 
lations or  practices  are  unjust  or  unreasonable  or  unjustly  dis- 
criminatory or  unduly  preferential  or  prejudicial,  or  otherwise 
violative  of  the  Commerce  Act,  may  prescribe  joint  and  lawful 
rates,  rules  and  charges  for  the  future  as  maximum  rates  and  may 
likewise  prescribe  just  and  reasonable  regulations.  And  the  Com- 
mission, the  carriers  failing  to  agree,  may  prescribe  the  division  of 
joint  rates. ^2  To  do  this  there  must  be  a  full  hearing  and  the 
"opinion"  of  the  Commission  must  be  based  upon  evidence  as  in 
formal  complaints.^'*  All  orders  of  the  Commission  under  this  au- 
thority shall  take  effect  in  some  reasonable  time,  to  be  prescribed 
by  the  Commission,  not  less  than  thirty  days. 

■^Int.   Com.   Com.  v.   Louisville       O.    R.    Co.,    226   U.    S.    14,    57    L. 
&  N.  R.   Co.,  227  U.  S.  88,   57  L.       Ed.    104,   33    Sup.    Ct.   5. 
Ed.    431,    33    Sup.    Ct.    185,    and  "Sec.  17  of  Act;  Sec.  417,  post. 

cases  cited.  •  "Sec.  15  of  Act;  Sees.  395,  and 

"United  States  v.  Baltimore  &       397,    post. 

"  Sec.   256,  supra. 


382  Procedure  of  Ixterstati-:  Commerce  Commission.   [§  258. 

§  258.  Suspension  of  Rates. — A  new  individual  or  joint  rate, 
fare,  or  charge,  or  a  new  joint  classification,  joint  regulation  or 
practice  affecting  any  rate,  fare,  or  charge,  may,  upon  complaint, 
or  on  the  initiative  of  the  Commission  without  complaint, 
and  without  answer  or  other  formal  pleadings,  be  sus- 
pended by  the  Commission,  and  when  the  suspension  is  had 
the  Commission  must  enter  upon  a  hearing  concerning  the  pro- 
priety of  such  rate,  fare,  charge,  classification,  regulation  or  prac- 
tice. When  the  suspension  is  ordered,  a  statement  in  writing  of 
the  Commission's  reasons  therefor  must  be  filed  with  the  schedule 
involved  and  delivered  to  the  carrier  or  carriers  affected  thereby. 

The  first  suspension  can  not  be  for  a  longer  time  than  one  hun- 
dred and  twenty  days,  although  where  the  hearing  can  not  be 
completed  in  that  time,  the  time  may  be  further  extended  for  not 
exceeding  six  months.  The  hearing  and  decision  in  suspension 
cases  must  be  given  preference  over  all  other  questions  pending 
before  the  Commission  and  must  be  decided  as  speedily  as  pos- 
sible. 

"At  any  hearing  involving  a  rate  increased  after  January  1, 
1910,  *  *  *  the  burden  to  show  that  the  increased  rate  or 
proposed  increased  rate  is  just  and  reasonable  shall  be  upon  the 
common  carrier,  and  the  Commission  shall  give  to  the  hearing 
and  decision  of  such  questions  preference  over  all  other  questions 
pending  before  it  and  decide  the  same  as  speedily  as  possible."  ^^ 

Any  new  practice  which  results  in  increasing  the  rate  is  within 
the  provision  fixing  the  burden  of  proof  on  the  carrier,  although 
it  would  seem  that  a  new  tariff'  provision  not  aff'ecting  the  rate 
while  subject  to  suspension  would  not  be  within  the  burden  of 
proof  clause. ^"^ 

Ordinary  cases  are  given  in  practice  a  Docket  number.    Suspen- 


^°  Sec.    15    of    Act    as    amended  with    the    schedule    suspended    a 

by    Act    of    June    IS,    1910:    Sees.  copy    of    the     suspending    order. 

398,     399,     post.       The     Commis-  When  a  suspension  is  vacated,  a 

sion     in     Tariff      Circular     IS-A,  statement  of  that  fact  must  like- 

p.    21,    prescribed    as    a    rule    for  wise  be  filed  by  the  carrier, 

carriers:  That  when  a  rate  is  sus-  °^  Re    Advances    in     Rates     on 

pended,    the    carrier    must    inunc-  Soft    Coal,   23    I.    C.    C.    518,   519; 

diately   file   with    the    Commission  Re    Advances    on     Lumber     and 

a     statement     stating     that     fact.  Forest  Products,  21  I.  C.  C.  455, 

Where   only   a   part   of  a  tariff   is  456.      See    also    Sec.   223,   ante. 
suspended,    the    carrier    must    file 


§  259.]   Procedure  of  Interstate.  Commerce  Commission.  383 

sion    cases    are    distinguished    as    Investigation    and    Suspension 
Docket,  and  given  consecutive  numbers. 

§  259.  Practice  in  Suspension  Cases  Where  There  Exist 
Intrastate  Rates  Lower  than  Proposed  Increased  Inter- 
state Rates. — \\'hen  it  is  made  to  appear  that  proposed  increased 
rates,  although  shown  to  be  just  and  reasonable  under  section  one 
of  the  act,  will,  if  they  become  effective,  be  higher  than  intrastate 
rates  for  related  and  competitive  hauls,  what  should  be  the  order 
of  the  Commission?  In  some  states  maximum  intrastate  rates  are 
prescribed  by  legislative  act,  and  the  maximum  fixed  cannot  be  ex- 
ceeded until  legislative  authority  is  obtained.  In  other  states 
rates  are  fixed  by  a  commission,  in  some  of  which  proposed  in- 
creases may  be  suspended  by  the  Commission  under  a  practice 
similar  to  that  obtaining  with  the  Interstate  Commerce  Commis- 
sion, in  others  of  such  states  permission  must  be  obtained  from 
the  state  commission  before  publishing  the  increased  rates.  Ob- 
viously it  is  not  always  legally  possible  for  carriers  simultaneously 
to  advance  interstate  and  intrastate  rates.  If  increases  are  denied 
in  one  class  of  rates  because  not  efifective  in  the  other  class,  no  in- 
crease can  ever  be  made,  and  the  state  authority  by  refusing  ad- 
vances in  the  state  rates  could  fix  the  limit  of  interstate  rates. 
This  may  not  legally  be  done.-^"  The  answer  to  the  foregoing  ques- 
tion was  made  by  the  Commission  as  follows  :  ^^  "The  protestants 
contend  that,  should  the  proposed  change  of  rating  become  effec- 
tive, the  increased  rates  would  result  in  unjust  discrimination 
against  interstate  shipments  of  live  poultry  to  St.  Paul  and  Minne- 
apolis, ]\Iinn.,  because  of  existing  lower  intrastate  rates  in  ]\Iinne- 
sota.  The  respondents  answer  that  in  the  event  proposed  rates 
are  permitted  to  become  effective  it  is  their  purpose  to  bring  about 
substantially  similar  increases  in  their  intrastate  rates.  If  the 
protestants  or  other  shippers  of  live  poultry  should  feel  aggrieved 
by  discriminations  which  may  result  from  rates  established  because 
of  our  finding  in  this  case,  the  way  will  be  open  by  formal  com- 
plaint to  the  Commission,  as  in  other  cases,  to  obtain  relief  from 
such  discriminations  as  may  be  found  to  be  unlawful."  The  rule 
just  stated  was  applied  in  the  Five  Per  Cent  case,^^  where  it  ap- 

"  Houston,  Tex.   Ry.    Co.  v.  U.  Trunk  Line  Territory,  32  I.  C.  C. 

S.,  234  U.   S.  342,  58  L.   Ed.   1341,  380. 

34   Sup.   Ct.   833.  ""Five   Per  Cent  Case,  31   I.  C. 

"  Rates  on  Poultry  in  Western  C.   351. 


384  Procedure  of  Interstate;  Commerce  Commission.   [§  259. 

peared  that  very  low  intrastate  rates  were  not  increased,  notwith- 
standing which  increases  in  interstate  rates  were  permitted. 

In  another  case  ^"^  an  interstate  rate  of  5fi  cents  was  found  to 
have  been  justified,  akhough  the  state  rate  for  a  similar  haul  in 
the  same  territory  was  but  S^-'S  cents.  The  Commission  refused 
to  reduce  an  interstate  rate  where  the  claim  for  such  reduction 
was  based  upon  the  fact  of  the  existence  of  lower  intrastate  rates, 
and  declined  to  pass  upon  the  question  of  discrimination  because 
that  C|uestion  was  not  the  specific  issue  presented.  There  it  was 
said:^^  "If  any  rate  for  transportation  wholly  within  a  state 
may  be  made  the  measure  of  the  rate  when  that  transportation 
moves  from  one  state  through  or  into  another,  the  interstate  rate 
so  resulting  would  not  be  regulation  of  interstate  commerce  by  the 
authority  prescribed  by  the  Constitution,  but  by  the  state.  If  the 
function  of. this  Commission  be  to  compute  the  sum  of  intrastate, 
rates  and  prescribe  the  result  as  the  measure  of  interstate  rates, 
actual  and  direct  regulation  of  interstate  commerce  by  the  states 
would  be  the  result.  That  in  the  regulation  of  interstate  commerce 
by  the  general  government  and  of  intrastate  commerce  by  the  state 
governments  there  result  inconveniences  and  anomalies,  such  as 
is  contended  to  exist  here,  might  be  conceded;  but  such  facts,  if 
they  exist,  neither  deprive  us  of  the  power  nor  relieve  us  from  the 
duty  of  performing  the  obligations  imposed  upon  us  by  laws  of 
Congress  authorized  by  the  Constitution  of  the  United  States. 
Were  we  at  liberty  and  inclined  to  abdicate  the  authority  and 
abandon  the  duty  imposed  upon  us  by  accepting  the  sum  of  state 
rates  as  a  measure  of  interstate  rates,  the  difficulty  would  not  be 
removed." 

Where  the  claim  w^as  made  that  interstate  rates  could  be  in- 
creased upon  proof  that  intrastate  rates  were  higher  than  the  in- 
terstate rates  proposed  to  be  advanced,  the  Commission  said :  "^^ 
"Uncjuestionably  the  law  of  ^Minnesota  presents  a  situation  to  the 
carriers  which  makes  it  necessary  for  them  either  to  adjust  some 
interstate  rates  to  the  mileage  rates  prescribed  by  that  law,  to  leave 
their  intrastate  and  interstate  rates  out  of  line,  or  to  suffer  ma- 
terial reductions  below  the  intrastate  rates  fixed  thereunder.  While 

^Hans  Rees'  Sons  v.  S.  Ry.  A.,  T.  &  S.  F.  Ry.  Co.,  31  I.  C. 
Co.,    30    I.    C.    C.    585.  C.    532,    540,    541. 

"Corporation  Com.  of  Okla.  v.  ""Rates     on     Beer     and    Other 

Alalt  Products,  31  I.   C.   C.  544. 


§  259.]   Procedure  of  Interstate  Commerce  Commission.  385 

we  may  consider  this  fact,  'Congress  does  not  directly  or  indirectly 
interfere  with  local  rates  by  adopting  their  sum  as  the  interstate 
rate,'  L.  &  N.  R.  R.  Co.  r.  Eubank.  184  U.  S.  27,  42,  and  we  can- 
not say  that  merely  because  a  higher  intrastate  rate  exists  that 
an  increase  of  an  interstate  rate  to  meet  the  state-made  rate  is 
justified,  even  though  the  transportation  conditions  as  to  distance 
and  territory  are  similar.  Xor  do  the  facts  here  presented  require 
that  we  consider  the  application  of  the  decision  of  the  Supreme 
Court  in  the  Slircz'cport  Case,  H.^  E.  &  W.  T.  Ry.  Co.  z'.  United 
States,  234  U.  S.  342." 

The  cases  discussed  show  the  rule,  which  until  the  decisions  now 
to  be  referred  to  were  rendered,  was  followed  by  the  Commission. 
Where  a  gateway  was  sought  to  be  closed  for  interstate  traffic  al- 
though left  open  for  intrastate  traffic,  the  Commission  held  that  the 
tarift'  proposing  the  change  should  be  canceled.  While  some  of 
the  language  used  in  the  opinion  is  apparently  not  consistent  with 
prior  decisions  of  the  Commission,  the  order  can  be  justified  on 
the  ground  that  the  proposed  tariff  was  unlawful  under  section 
one  of  the  act.*^^ 

In  discussing  live  stock  rates  the  Commission  without  reference 
to  any  of  the  cases  cited  above,  said :  ^^  "The  incongruity  between 
the  proposed  interstate  rates  and  intrastate  rates  is  a  circumstance 
which  goes  vitally  to  the  propriety  of  the  rates  under  suspension. 
To  dispose  of  this  issue  it  is  necessary  to  have  before  us  the  facts 
and  circumstances  surrounding  the  establishment  of  these  intra- 
state rates."  In  the  1915  Western  Advance  Rate  case  "^^  the  ma- 
jority of  the  Commission,  ]\Ir.  Commissioner  Harlan  and 
^Ir.  Commissioner  Daniels  dissenting,  applied  the  rule  that 
lower  intrastate  rates  may  justify  denying  increases  in  in- 
terstate rates  in  the  proposed  increases  in  the  rates  on  live 
stock  and  packing  house  products,  but  not  to  the  proposed 
increases  in  the  rates  on  coal  and  the  increased  car  load  minimum 
on  grain  products.  The  principles  stated  in  the  quotations  above 
cannot,  when  taken  from  their  setting,  be  harmonized.  The  Com- 
mission does  not  apply  the  rule  stare  decisis  and  consid- 
ering what  was  done  in  the  several  cases  rather  than  what  was 

"'^  Class  Rules  between  Stations  "'Western    Rate  Advance    Case 

in   Louisiana,   33   I.   C.   C.   302.  1915,    35    I.    C.    C.    497.      For    the 

"Live  Stock  Rates  from   Colo-  discussion  in  the  dissenting  opin- 

rado,   35    L    C.    C.   682,   dissenting  ion,  see  pp.  G54,  ct  scq. 
opinion,   pp.   689-691. 
—13 


386  Procedure  oe  Interstate  Commerce  Commission.   [§  260, 

said,  it  may  be  stated  that  when  a  carrier  seeks  to  justify  increases 
in  its  rates  and  the  claim  is  made  or  the  fact  appears  that  there 
exist  lower  intrastate  rates  on  the  same  commodity  in  the  same 
general  territory,  the  safe  course  is  to  make  full  proof  showing 
the  reasons  for  the  existence  of  the  lower  rates  and  explaining 
why  they  have  not  been  increased.  In  all  cases  where  this  rela- 
tionship of  interstate  rates  higher  than  intrastate  rates  exists,  the 
protesting  shippers  should  present  the  fact  supported  by  such 
proof  as  is  available.  When  the  proof  is  made,  the  Commission 
upon  a  consideration  of  "all  the  facts  and  circumstances,"  will 
exercise  its  '"flexible  limit  of  judgment,"  permitting  or  denying 
the  increases,  as  may  seem  just  and  proper  in  each  case.  Perhaps 
a  definite  and  unifonn  rule  like  that  stated  in  the  Live  Poultry 
case,  supra,  would  be  advisable,  but  it  cannot  be  said  that  there 
is  now  any  such  rule. 

§  260.  The  Weak  and  the  Strong  Roads. — Rates  between 
the  same  points  must,  as  a  practical  matter,  be  the  same  over  all 
lines  connecting  the  points,  otherwise  the  line  maintaining  the  low- 
est rates  would  receive  all  the  business.  When  rates  in  a  general 
and  related  territory  are  increased  the  increases  must,  to  be  of  any 
benefit  to  the  carriers,  apply  to'  all  carriers  serving  the  territory. 
It  not  infrequently  occurs  that  in  the  general  territory  there  are 
carriers  whose  need  for  additional  revenue  is  indubitable ;  other 
carriers  may  be  earning  a  fair  return  on  their  investments  while 
as  to  others  the  need  for  additional  revenue  is  uncertain.  To  con- 
sider the  weak  roads  or  the  strong  roads  only  would  manifestly 
be  unfair  either  to  the  public  or  to  the  investor  in  railroad  prop- 
erty. Under  such  circumstances  it  has  been  the  rule  of  the  Com- 
mission to  measure  the  need  for  additional  revenue  by  the  con- 
dition of  a  road  which  is  fairly  representative  of  the  general 
situation.  This  is  manifestly  proper,  as  each  road,  the  weak  and 
the  strong,  is  necessary  to  the  public  service,  and  to  destroy  the 
weak  road  because  there  may  be  a  road  in  the  same  territory 
which  needs  less  revenue,  benefits  a  few  but  injures  the  many. 
Perhaps  it  might  be  proper  that  there  should  be  regulation  limit- 
ing the  construction  of  a  road  where  the  territory  is  already  suffi- 
ciently served  by  existing  transportation  facilities ;  but  so  long 
as  the  law  permits  the  construction  of  roads  and  denies  the  right 
to  pool  freights,  justice  will  permit  the  needs  of  the  roads  so 
constructed  to  be  considered  in  prescribing  rates   for  a  related 


§  261.]   Procedure  of  Interstate;  Commerce;  Commission.  387 

section.  In  the  general  rate  advance  cases  heretofore  heard  by 
the  Commission,  these  principles  have  been  announced,  and  in 
the  Western  Advance  Rate  case  of  1915,  35  I.  C.  C.  497,  560,  561, 
the  authorities  are  collated. 

§  261.  Other  Orders. — The  procedure  in  prescribing  through 
routes  and  joint  rates  may  be  on  complaint  or  without  com- 
plaint,^^ and  so  with  the  procedure  to  determine  the  maximum 
to  be  paid  a  shipper  for  services  rendered  or  facihties  furnished 
in  connection  with  transportation.*'"  In  each  case  there  must  be 
a  hearing. 

§  262.  Service  of  Orders  of  the  Commission. — Every  or- 
der of  the  Commission  shall  be  forthwith  served  upon  the 
designated  agent  of  the  carrier. ^^ 

Every  carrier  must  designate  in  writing  an  agent  in  the  city  of 
Washington,  District  of  Columbia,  upon  whom  service  of  all 
notices  and  processes  may  be  made  and  file  such  designation  with 
the  Secretary  of  the  Commission,  and,  in  default  of  such  desig- 
nation, service  of  any  notice  or  other  process  in  any  proceeding 
before  the  Commission  may  be  made  by  posting  such  notice  or 
process  in  the  office  of  the  Secretary  of  the  Commission.*'^ 

The  Commission  has  an  official  seal,  which  the  law  prescribes 
shall  be  judicially  noticed.'*' 

§  263.  Rehearing  by  the  Commission. — The  Commission 
has  authority  to  suspend  or  modify  its  orders  upon  notice,  the 
manner  of  acting  and  the  kind  of  notice  being  left  to  its  discre- 
tion. Section  16-a  gives  the  Commission  power  to  grant  rehear- 
ings  under  such  general  rules  as  it  may  prescribe,  but  unless  spe- 
cially permitted  otherwise,  the  order  must  be  obeyed  pending 
such  rehearing.  This  section  was  added  by  the  amendment  of 
June  29,  1906,  but  the  power  has  been  exercised  by  the  Commis- 
sion since  its  organization. 

In  re  Petition  of  Produce  Exchange,"  ^  a  rehearing  was  denied 
the  petitioner,  who  was  not  a  party  on  the  original  hearing.  In 
Myers  v.  Penn.  Co."-  the  rehearing  was  denied,  the  petition  not 
showing  that  any  material  testimony  had  been  overlooked  or  mis- 

.  "Sec.  15  of  Act;  Sec.  400,  post.  ''Re    Petition    of    Produce    Ex- 

"'Sec.  15  of  Act;  Sec.  404,  post.  change,    2    I.    C.    C.    588.    2    I.    C. 

'''Sec.  16  of  Act;  Sec.  410,  post.  R.   412. 

'^  Sec.  6,  par.  2  of  Act  June  18,  "  Myers    v.      Pennsylvania      R. 

1910;   Sec.  450,  post.  Co.,    2    I.    C.    C.    573,    2    I.    C.    R. 

'"Sec.  17  of  Act;  Sec.  417,  post.  403,   544. 


388  Procedure  of  Interstate  Commerce  Commissiox.   [§  264. 

apprehended  and  no  error  of  law  being  disclosed.  In  overruling 
the  first  motion  for  rehearing  filed  with  the  Commission,  Judge 
Cooley,  its  then  chairman,  announced  this  rule  in  relation  there- 
to :"3 

"(a)  The  Commission  will  promptly  and  carefully  examine 
an  application  for  a  rehearing  with  a  view  to  the  immediate 
correction  of  any  error  of  law  or  fact  fovmd  to  exist,  but  will 
not  direct  a  rehearing  involving  the  expense  to  parties  of  ap- 
pearing before  the  Commission  for  a  reargument,  unless  satis- 
fied that  such  reargument  might  have  the  efl:ect  of  changing  the 
result  of  what  the  Commission  has  already  done. 

"(b)  The  statute  is  construed  as  dealing  Avith  the  substance 
of  things,  and  as  contemplating,  as  far  as  that  is  possible,  meth- 
ods of  procedure  that  are  speedy  and  which  come  at  once  to  the 
very  right  of  cjuestions  arising  in  the  transportation  of  persons 
and  freight." 

On  a  petition  asking  a  rehearing  in  a  case  decided  before  the 
Hepburn  amendment,  so  that  an  order  could  be  made  under 
section  15,  as  amended,  the  Commission  held  that  a  case  closed 
prior  to  the  effective  date  of  the  Amendment  of  June  29,  1916, 
could  not  be  reopened  to  enter  an  order  authorized  by  the 
amended  law.'"' 

§  264.  Valuation  of  Property. — The  power  given  the  Com- 
mission by  Act  March  1,  1913,  to  classify,  inventory  and  value 
the  property  of  carriers  subject  to  the  Act  has  been  stated.'^ 
The  statute  gives  the  Commission  power  to  prescribe  the  method 
of  procedure  to  be  followed  in  the  conduct  of  the  investigation, 
the  form  in  which  the  results  shall  be  submitted,  and  the  classi- 
fication of  the  elements  that  constitute  the  ascertained  value. 

§  265.  Oral  Argument. — By  rule  14  of  the  rules  of  practice 
it  is  provided :  "Oral  argument  will  be  had  only  as  ordered  by 
the  Commission." 

In  speaking  of  oral  argument  the  Commission  said : 

"The  act  provides  for  the  taking  of  testimony  in  these  investi- 
gations by  a  single  commissioner  or  by  an  examiner.  It  is  prob- 
able that  the  Commission  might,  in  its  discretion,  require  the  sub- 
mission of  a  case  upon  the  testimony  so  taken  and  written  briefs. 

"Riddle,  Dean   &  Co.  v.   Pitts-  "Cattle   Raisers'  Assn.  v.   Chi- 

burg  &  L.  E.  R.  Co.,  1  I.  C.  C.  cago.  B.  &  Q.  R.  Co.,  12  I.  C. 
490,  1   I.   C.   R.  773.  C.    6. 

"Sees.   231-233.  supra. 


§  266.]   Procedure  oe  Interstate;  Commerce:  Commission,  389 

However,  this  may  be,  we  have  never,  in  fact,  yet  refused,  and 
should  only  rfifuse  under  peculiar  and  unusual  circumstances, 
the  application  of  a  party  to  be  heard  orally.  As  above  observed, 
testimony  in  these  investigations  is  often  taken  without  the  pres- 
ence of  any  member  of  the  Commission.  It  almost  never  hap- 
pens that  a  majority  of  the  Commission  hear  the  testimony.  The 
only  opportunity  which  a  party  has  of  stating  his  views  to  this 
body  by  word  of  mouth  is  upon  the  argument.  The  importance 
of  these  arguments  is  recognized,  and  they  will  ordinarily  be  al- 
lowed as  a  matter  of  course.  Application  for  such  argument 
should,  however,  be  made  when  the  testimony  is  concluded  and 
not  deferred  as  in  this  case,  although  here,  even,  as  soon  as  we 
learned  that  the  parties  desired  to  present  their  views  orally  the 
proceeding  was  reopened  and  set  down  for  argument."'** 

§  266.  Estoppel  by  Former  Order  of  the  Commission. — 
While  the  technical  plea  of  res  adjndicata  does  not  apply  to  pro- 
ceedings before  the  Commission,  and  the  rule  of  stare  decisis 
has  been  held  inapplicable  to  its  reports,  that  body  must,  of  ne- 
cessity, when  it  reaches  a  conclusion  on  a  particular  state  of  facts 
adhere  to  that  conclusion  unless  and  until  the  conditions  upon 
which  the  conclusion  was  based  have  changed  or  unless  the  Com- 
mission acted  in  the  first  instance  upon  a  misconception  of  fact  or 
a  mistake  of  law."" 

Where,  however,  the  Commission  prior  to  the  Hepburn  Act, 
effective  August  28,  1906,  had  declared  a  rate  unreasonable,  and 
its  order  had  not  been  enforced  by  the  courts,  the  Commission 
was  not  prevented  after  the  passage  of  that  Amendment  from 
again  considering  the  question.'^ ^ 

The  statute  requires  that  the  orders  of  the  Commission  shall 

'"  Ullman    v.    Adams    Exp.    Co.,  dale  Coal  &  Coke  Co.  v.  Pennsyl- 

14   I.   C.   C.  585,  5&6.  vania  R.  Co.,  19  I.  C.  C.  356,  361. 

"  Banner    Milling    Co.    v.    New  "  National  Hay  Assn.  v.  Michi- 

York    C.    &   H.   R.    R.    Co.,    14    I.  gan  Cent.  R.  Co.,  19  I.  C.  C.  34. 

C.    C.    398,    followed    in     Kansas  For    a    history    of    the    first    case 

City  Traffic   Bureau  v.   Atchison,  see,  National  Hay  Assn.  v.  Lake 

T.  &  S.  F.   Ry.   Co.,   15   I.   C.   C.  Shore  &  M.  S.  Ry.  Co.,  9  I.  C.  C. 

491,    497;    Receivers    &    Shippers  264;     Int.    Com.     Com.    v.     Lake 

Assn.   V.   Cincinnati,    N.   O.    &  T.  Sliore    &    S.    Ry.    Co.,    134    Fed. 

P.  Ry.  Co.,  18  I.  C.  C.  440;  Waco  942;     Int.    Com.     Com.    v.     Lake 

Freight  Bureau  v.  Houston  &  T.  Shore    &   M.    S.    Ry.    Co.,   202   U. 

C.  T.  Co.,  19  I.  C.  C.  22,  24;  Hills-  S.    613.    50    L.    Ed.    1171,    26    Sup. 

Ct.    865. 


390  Procedure  of  Ixterstati:  Commerce  Commission*.   [§  267. 

continue  in  force  two  years,  after  which  time  the  Commission 
has  power  again  to  consider  the  question  and  enter  another  and, 
if  the  facts  justify,  a  different  order.'^ 

§  267.  Rules  of  Procedure  Prescribed  by  the  Commis- 
sion.— By  section  17  of  the  Act  it  is  provided: 

"That  the  Commission  may  conduct  its  proceedings  in  such 
manner  as  will  best  conduce  to  the  proper  dispatch  of  business 
and  to  the  ends  of  justice.  *  *  *  Said  Commission  may,  from 
time  to  time,  make  or  amend  such  general  rules  or  orders  as  may 
be  requisite  for  the  order  and  regulation  of  proceedings  before 
it,  including  forms  of  notices  and  the  service  thereof,  which  shall 
conform,  as  nearly  as  may  be,  to  those  in  use  in  the  courts  of 
the  United  States.  Any  party  may  appear  before  said  Commis- 
sion and  be  heard,  in  person  or  by  attorney." 

Under  authority  granted  under  said  section,  the  Interstate 
Commerce  Commission  has  promulgated  rules  of  practice  which 
are  copied  in  the  sections  following. 

§  268.  Sessions  of  the  Commission  to  Be  Public — Its  Of- 
fices in  Washington. — Sessions  of  the  Commission  for  hearing 
contested  cases,  inchiding  oral  arguments,  will  be  held  as  or- 
dered by  the  Commission. 

The  office  of  the  Commission  at  Washington,  D.  C,  is  open 
each  business  day  from  9  a.  m.  to  4  :30  p.  m.*'^ 

§  269.  Parties. — Any  person,  firm,  company,  corporation,  or 
association,  mercantile,  agricultural,  or  manufacturing  society, 
body  politic  or  municipal  organization,  or  any  common  carrier, 
or  the  railroad  commissioner  or  conmiission  of  any  State  or  Ter- 
ritory, may  complain  to  the  Commission  of  anything  done,  or 
omitted  to  be  done,  in  violation  of  the  provisions  of  the  act  to 
regulate  commerce  bv  any  common  carrier  subject  to  the  provi- 
sions of  said  act.  If  a  complaint  relates  to  matters  in  which 
two  or  more  carriers,  engaged  in  transportation  by  continuous 
carriage  or  shipment,  are  interested,  the  several  carriers  partic- 
ipating in  sucli  carriage  or  shipment  are  necessary  parties  de- 
fendant. 

If  a  complaint  relates  to  rates,  regulations,  or  practices  of  car- 
riers operating  dift'erent  lines,  and  the  object    of  the  proceeding 

"Re  Advances  in  Rates  be-  cago  &  X.  \V.  Ry.  Co.,  21  I.  C. 
tween    the    Mississippi    and    Alis-       C.  546. 

souri    Rivers,    Warnock    z\    Chi-  ^  Rule  1  of  the  Rules  of  Prac- 

tice adopted  by  the  Commission. 


§  270.]   Procedure  op  Interstate  Commerce  Commission.  391 

is  to  secure  correction  of  such  rates,  regulations,  or  practices  on 
each  of  said  Hnes,  all  the  carriers  operating  such  lines  should  be 
made  defendants. 

If  a  complaint  relates  to  provisions  of  a  classification  it  will 
ordinarily  be  sufficient  to  name  as  defendants  the  principal  car- 
riers named  as  parties  to  the  classification. 

If  the  line  of  a  carrier  is  operated  by  a  receiver  or  trustee, 
both  the  carrier  and  its  receiver  or  trustee  must  be  made  defend- 
ants in  cases  involving  transportation  over  such  line. 

Any  person  may  petition  in  any  proceeding  for  leave  to  in- 
tervene prior  to  or  at  the  time  of  the  hearing  and  not  after.  Such 
petition  shall  set  forth  the  petitioner's  interest  in  the  proceedings, 
but  intervention  will  not  be  permitted,  except  upon  allegations 
that  are  reasonably  pertinent  to  the  issues  of  the  original  com- 
plaint. Leave  granted  on  such  petition  will  entitle  such  inter- 
veners to  have  notice  of  hearings,  to  produce  and  cross-examine 
witnesses,  and  to  be  heard  in  person  or  by  counsel  upon  brief 
and  at  the  oral  argument. ^^ 

§  270.  Complaints. — Complaints  must  be  in  typewriting  on 
one  side  of  the  paper  only,  on  paper  not  more  than  Sy2  inches 
wide  and  not  more  than  12  inches  long,  and  weighing  not  less 
than  16  pounds  to  the  ream,  folio  base,  17  by  22  inches,  with  left- 
hand  margin  not  less  than  lj/4  inches  wide,  setting  forth  briefly 
the  facts  claimed  to  constitute  a  violation  of  the  law.  Com- 
plaints may  also  be  printed  in  the  size  designated  in  Rule  XIV 
regarding  briefs.  The  corporate  name  of  the  carrier  or  carriers 
complained  against  must  be  stated  in  full  without  abbreviations, 
and  the  address  of  the  complainant,  with  the  name  and  address 
of  his  attorney  or  counsel,  if  any,  must  appear  upon  each  copy 
of  the  complaint.  The  complaint  need  not  be  verified,  but  must 
be  signed  in  ink  by  the  complainant  or  his  duly  authorized  at- 
torney. The  complainant  must  furnish  as  many  complete  copies 
of  the  complaint  as  there  may  be  parties  complained  against  to 
be  served,  including  receiver  or  receivers,  and  three  additional 
copies  for  the  use  of  the  Commission. 

The  Commission  will  serve  the  complaint  upon  each  defend- 
ant by  leaving  a  copy  with  its  agent  in  the  District  of  Columbia, 
or,  if  no  such  agent  has  been  designated,  by  posting  a  copy  in 
the  office  of  the  Secretary  of  the  Commission. 

Two  or  more  complaints  involving  the  same  principle,  subject, 

"  Rule  2. 


392  Procedure  of  Interstate  Commerce  Commission.   [§  270. 

of  state  of  facts  may  be  included  in  one  complaint.  The  several 
rates,  regulations,  discriminations,  and  shipments  involved  should 
be  separately  set  out  and  in  case  discrimination  in  rates  or 
charges  is  alleged,  appropriate  allegation  should  also  be  made  to 
present  for  decision  the  issue  as  to  whether  or  not  such  rates  or 
charges  are  just  and  reasonable.  One  or  more  persons  may  join 
in  one  complaint  against  one  or  more  carriers  if  the  subject  mat- 
ter of  the  complaint  involves  substantially  the  same  principle, 
subject,  or  state  of  facts. 

Except  under  unusual  circumstances  and  for  good  cause 
shown,  reparation  will  not  be  awarded  unless  specifically  prayed 
for  in  the  complaint  or  in  an  amendment  thereto  filed  before  the 
submission  of  the  case. 

After  a  final  order  has  been  entered  upon  a  complaint  in  which 
reparation  is  not  sought  or.  if  prayed,  has  been  denied,  the  Com- 
mission will  not  ordinarily  award  reparation  upon  a  complaint 
subsequently  filed  and  based  upon  any  finding  upon  the  first  com- 
plaint. 

Where  reparation  is  demanded  under  a  general  rate  adjust- 
ment challenged  in  the  complaint,  or  upon  many  shipments  under 
a  particular  rate,  or  where  many  points  of  origin  or  destination 
are  involved,  it  is  the  practice  of  the  Commission  first  to  deter- 
mine and  make  a  formal  announcement  respecting  the  reasona- 
bleness of  the  rate  or  rates  in  issue,  and  whether  the  facts  justify 
an  award  of  reparation,  giving  to  the  parties  thereafter  an  op- 
portunity to  make  proof  respecting  the  shipments  upon  which 
reparation  is  claimed.  Freight  bills  and  other  exhibits  must 
therefore  be  reserved  until  such  further  hearing  and  must  not 
be  filed  with  the  complaint.  In  such  cases  the  complaint,  without 
unnecessary  details,  should  disclose  in  general  terms  the  basis 
and  extent  of  the  damages  demanded  in  such  manner  as  reason- 
ably to  advise  the  defendants  thereof. 

When  a  claim  for  reparation  has  been  before  the  Commission 
informally  and  the  parties  have  been  notified  by  the  Commission 
that  the  claim  is  of  such  a  nature  that  it  can  not  be  determined 
informally,  formal  complaint  must  be  filed  within  six  months 
after  such  notification,  or  the  parties  will  be  deemed  to  have 
abandoned  their  claim :  Provided,  however.  That  this  rule  does 
not  apply  to  formal  complaints  for  reparation  filed  within  two 
years  from  the  date  of  the  delivery  of  the  shipments. ^- 

''Rule  3. 


§  271.]   Procedure  of  Interstate;  Commerce;  Commission.  393 

§  271.  Answer. — One  copy  of  each  answer  must,  unless  the 
Commission  orders  otherwise,  be  filed  with  the  secretary  of  the 
Commission  at  his  office  in  Washington,  D.  C,  within  thirty  days 
after  the  day  of  service  of  the  complaint  by  defendants  whose 
general  offices  are  at  or  west  of  El  Paso,  Tex.,  Salt  Lake  City, 
Utah,  or  Spokane,  Wash.,  and  within  twenty  days  by  all  other 
defendants,  and  a  copy  of  each  such  answer  must  be  at  the  same 
time  served  personally  or  by  mail  upon  the  complainant  or  his  at- 
torney. The  Commission  will,  when  advisable,  shorten  or  ex- 
tend the  time  for  answer.  If  a  defendant  satisfies  a  complaint 
before  answering,  a  written  acknowledgment  thereof,  showing 
the  character  and  extent  of  the  satisfaction  given,  must  be  filed 
by  the  complainant.  In  such  case  a  statement  of  the  fact  and 
manner  of  satisfaction  without  other  matter  may  be  filed  as  an- 
swer. If  the  complaint  is  satisfied  after  the  filing  and  service  of 
answer,  a  written  acknowledgment  thereof  must  be  filed  by  the 
complainant  and  a  supplemental  answer  setting  forth  the  fact 
and  manner  of  satisfaction  must  be  filed  by  the  defendant.  An- 
swers in  typewriting  must  be  on  one  side  of  the  paper  only,  on 
paper  not  more  than  8^^  inches  wide  and  not  more  than  12 
inches  long  and  weighing  not  less  than  16  pounds  to  the  ream, 
folio  base,  17  by  22  inches,  with  left-hand  margin  not  less  than 
1  ^  inches  wide,  or  may  be  printed  in  the  size  designated  in  Rule 
XIV  regarding  briefs. ^^ 

§  272.  Motion  to  Dismiss  in  the  Nature  of  a  Demurrer. 
— A  defendant  who  deems  the  complaint  insufficient  to  show  a 
breach  of  legal  duty  may,  instead  of  answering  or  formally  de- 
murring, serve  on  the  complainant  notice  of  hearing  on  the  com- 
plaint ;  and  in  such  case  the  facts  stated  in  the  complaint  will  be 
deemed  admitted.  A  copy  of  the  notice  must  at  the  same  time 
be  filed  with  the  secretary  of  the  Commission.  The  filing  of  an 
answer,  however,  will  not  be  deemed  an  admission  of  the  suffi- 
ciency of  the  complaint,  but  a  motion  to  dismiss  for  insufficiency 
may  be  made  at  the  hearing. '^^ 

§  273.  Service  of  Papers. — Copies  of  notices  or  papers,  other 
than  complaints,  presented  by  a  party  must  be  served  upon  the 
adverse  party  or  parties  personally  or  by  mail.  When  any  party 
has  appeared  by  attorney,  service  upon  such  attorney  will  be 
deemed  proper  service  upon  the  party. ^'^ 

''Rule   4.  ''Rule    6. 

"Rule   5. 


394  Procedure  of  Interstate:  Comme;rce:  Commission.   [§  274. 

§  274.  Amendments  to  Pleadings. — Amendments  to  any 
complaint  or  answer  in  any  proceeding  or  investigation  will  be 
allowed  by  the  Commission  at  its  discretion.^'' 

§  275.  Continuances. — Continuances  and  extensions  of  time 
will  be  granted  at  the  discretion  of  the  Commission.-' 

§  276.  Stipulations  Desirable  and  Must  Be  in  Writing. — 
Parties  to  any  proceeding  may,  by  stipulation  in  writing  filed 
with  the  secretary,  agree  upon  the  facts,  or  any  portion  thereof, 
involved  therein.  It  is  desired  that  the  facts  be  thus  agreed  upon 
whenever  practicable.^*' 

§  277.  Hearings. — Upon  issue  being  joined  by  service  of  an- 
swer or  by  notice  of  hearing  on  the  complaint,  or  by  failure  of 
defendant  to  answer,  the  Commission  will  assign  a  time  and  place 
for  hearing.  Witnesses  will  be  examined  orally  before  the  Com- 
mission or  one  of  its  examiners,  unless  their  testimony  be  taken 
by  deposition  or  the  facts  be  agreed  upon  as  provided  for  in 
these  rules. ^^ 

§  278.  Depositions,  How  Taken. — The  deposition  of  a  wit- 
ness for  use  in  a  case  pending  before  the  Commission  may,  after 
such  case  is  at  issue,  be  taken  upon  compliance  with  the  follow- 
ing rules  of  procedure,  which  are  prescribed  by  the  Commission 
under  authority  conferred  upon  it  by  section  17, of  the  act,  but 
not  otherwise. 

Such  depositions  may  be  taken  before  a  special  agent  or  ex- 
aminer of  the  Commission,  or  any  judge  or  commissioner  of  any 
court  of  the  United  States,  or  any  clerk- of  a  district  court,  or 
any  chancellor,  justice,  or  judge  of  a  supreme  or  superior  court, 
mayor  or  chief  magistrate  of  a  city,  judge  of  a  county  court  or 
court  of  common  pleas  of  any  of  the  United  States,  or  any  no- 
tary public,  not  being  of  counsel  or  attorney  to  either  of  the  par- 
ties, nor  interested  in  the  event  of  the  proceeding  or  investiga- 
tion, according  to  such  designation  as  the  Commission  may  make 
in  any  order  made  by  it  in  the  premises,  except  that  where  such 
deposition  is  taken  in  a  foreign  country  it  may  be  taken  before 
an  officer  or  person  designated  by  the  Commission  or  agreed 
upon  by  the  parties  by  stipulation  in  writing  to  be  filed  with  the 
Commission. 

Any  party  desiring  to  take  the  deposition  of  a  witness  in  such 

''  Rule  7.  '^  Rule  9. 

'■Rule   8.  '"Rule  10. 


§  278.]   Procedure  of  Interstate  Commerce  Commission.  395 

a  case  shall  notify  the  Commission  to  that  effect,  and  in  such 
notice  shall  state  the  time  when,  the  place  where,  and  the  name 
and  post-office  address  of  the  party  before  whom  it  is  desired 
the  deposition  be  taken,  the  name  and  post-office  address  of  the 
witness,  and  the  subject  matter  or  matters  concerning  which  the 
witness  is  expected  to  testify,  whereupon  the  Commission  will 
make  and  serve  upon  the  parties  or  their  attorneys  an  order 
wherein  the  Commission  shall  name  the  witness  whose  deposi- 
tion is  to  be  taken  and  specify  the  time  when,  the  place  where, 
and  the  party  before  whom  the  witness  is  to  testify,  but  such 
time  and  place,  and  the  party  before  whom  the  deposition  is  to 
be  taken,  so  specified  in  the  Commission's  order,  may  or  may 
not  be  the  same  as  those  named  in  said  notice  to  the  Commission. 

Every  person  whose  deposition  is  so  taken  shall  be  cautioned 
and  take  oath  (or  afffrm)  to  testify  the  whole  truth  and  nothing 
but  the  truth  concerning  the  matter  about  which  he  shall  testify, 
and  shall  be  carefully  examined.  His  testimony  shall  be  reduced 
to  typewTiting  by  the  officer  before  whom  the  deposition  is  taken, 
on  imder  his  direction,  after  which  the  deposition  shall  be  sub- 
scribed by  the  witness  and  certified  in  usual  form  by  the  officer. 
After  the  deposition  has  been  so  subscribed  and  certified  it  shall, 
together  with  two  copies  thereof  made  by  such  officer  or  under 
his  direction,  be  forwarded  by  such  officer  under  seal  in  an  en- 
velope addressed  to  the  Commission  at  its  office  in  Washington, 
D.  C.  Upon  receipt  of  the  deposition  and  copies  the  Commission 
will  file  in  the  record  in  said  case  such  deposition  and  forward 
one  copy  to  the  complainant  or  his  attorney,  and  the  other  copy 
to  the  defendant  or  its  attorney,  except  that  where  there  is  more 
than  one  complainant  or  defendant  the  copies  will  be  forwarded 
by  the  Commission  to  the  parties  designated  by  such  complain- 
ants or  defendants  as  the  case  may  be. 

Such  depositions  shall  be  typewritten  on  one  side  only  of  the 
paper,  which  shall  be  not  more  than  8^  inches  wide  and  not 
more  than  12  inches  long  and  weighing  not  less  than  16  pounds 
to  the  ream,  folio  base  17  by  22  inches,  with  left-hand  margin 
not  less  than  1^  inches  wide. 

No  deposition  shall  be  taken  except  after  6  days'  notice  to  the 
parties,  and  where  the  deposition  is  taken  in  a  foreign  country 
such  notice  shall  be  at  least  15  days. 

No  such  deposition  shall  be  taken  either  before  the  case  is  at 
issue  or,  unless  under  special  circumstance  and  for  good  cause 


396  Procedure  of  Interstate:  Commerce  Commission.   [§  279. 

shown,  within  10  days  prior  to  the  date  of  the  hearing  thereof  as- 
signed by  the  Commission,  and  where  the  deposition  is  taken  in  a 
foreign  country  it  shall  not  be  taken  after  30  days  prior  to  such 
date  of  hearing. 

Witnesses  whose  depositions  are  taken  pursuant  to  these  rules 
and  the  magistrate  or  the  officer  taking  the  same,  unless  he  be 
an  examiner  of  the  Commission,  shall  severally  be  entitled  to  the 
same  fees  as  are  paid  for  like  service  in  the  courts  of  the  United 
'States,  which  fees  shall  be  paid  by  the  party  or  parties  at  whose 
instance  the  depositions  are  taken. ^" 

§  279.  Attendance  of  Witnesses. — Subpoenas  requiring  the 
attendance  of  witnesses  from  any  place  in  the  United  States  to 
any  designated  place  of  hearing  may  be  issued  by  any  member 
of  the  Commission. 

Subpoenas  for  the  production  of  books,  papers,  or  documents 
(unless  directed  to  issue  by  the  Commission  upon  its  own  mo- 
tion) will  issue  only  upon  application  in  writing.  Applications 
to  compel  witnesses  not  parties  to  the  proceeding  to  produce  doc- 
umentary evidence  must  be  verified  and  must  specify,  as  near 
as  may  be,  the  books,  papers,  or  documents  desired  and  the  facts 
to  be  proven  by  them.  Applications  to  compel  a  party  to  the 
proceeding  to  produce  books,  papers,  or  documents  need  only 
set  forth  in  a  general  way  the  books,  papers,  or  documents 
sought,  with  a  statement  that  the  applicant  believes  they  will  be 
of  service  in  the  determination  of  the  case. 

Witnesses  whose  testimony  is  taken  orally  are  severally  en- 
titled to  the  same  fees  as  are  paid  for  like  services  in  the  courts 
of  the  United  States,  such  fees  to  be  paid  by  the  party  at  whose 
instance  the  testimony  is  taken. *^i 

§  280.  Documentary  Evidence. — Where  relevant  and  ma- 
terial matter  offered  in  evidence  is  embraced  in  a  document  con- 
taining other  matter  not  material  or  relevant  and  not  intended 
to  be  put  in  evidence,  such  document  will  not  be  filed,  but  the 
party  offering  the  same  shall  also  present  to  opposing  counsel 
and  to  the  Commission  in  proper  form  for  filing  copies  of  such 
material  and  relevant  matter,  and  that  only  shall  be  filed. 

In  case  any  portion  of  a  tariff',  report,  circular,  or  other  docu- 
ment on  file  with  the  Commission  is  off'ered  in  evidence,  the 
party  offering  the  same  must  give  specific  reference  to  the  items 

""Rule  11.  "'Rule    12. 


§  281.]   Procedure  of  Ixte;rstate  Commerce  ComxMission.  397 

or  pages  and  lines  thereof  to  be  considered.  In  case  any  testi- 
mony in  other  proceedings  than  the  one  on  hearing  is  introduced 
in  evidence,  a  copy  of  such  testimony  must  be  presented  as  an 
exhibit.  When  exhibits  of  a  documentary  character  are  offered 
in  evidence,  two  copies  should  be  furnished  at  the  hearing  for 
the  use  of  the  Commission  and  a  copy  for  each  of  the  principal 
parties  represented. ^- 

§  281.  Briefs  and  Oral  Argument. — Unless  otherwise  spe- 
cifically ordered,  briefs  may  be  filed  upon  application  made  at 
hearings  or  upon  order  of  the  Commission.  Briefs  shall  be 
printed  and  contain  an  abstract  of  the  evidence  relied  upon  by 
the  parties  filing  the  same,  assembled  by  subjects  under  findings 
of  fact  which  the  parties  think  the  Commission  should  make ; 
and  in  such  abstract  reference  shall  be  made  to  the  pages  of  the 
record  wherein  the  evidence  relied  upon  appears.  The  abstract 
of  evidence  should  follow  the  statement  of  the  case  and  precede 
the  argument.  Every  brief  of  more  than  10  pages  shall  contain 
on  its  front  fly  leaves  a  subject  index  with  page  references,  the 
subject  index  to  be  supplemented  by  a  list  of  all  cases  referred 
to  alphabetically  arranged,  together  with  references  to  pages 
where  the  cases  are  cited.  Briefs  must  be  printed  in  10  or  12 
point  type,  on  good  unglazed  paper,  5j4  inches  wide  by  9  inches 
long,  with  inside  margins  not  less  than  1  inch  wide,  and  with 
double-leaded  text  and  single-leaded  citations. 

At  the  close  of  the  testimony  in  each  case  the  presiding  com- 
missioner or  examiner  will  fix  the  time  for  filing  and  service  of 
the  respective  briefs,  as  follows,  unless  good  cause  for  variation 
therefrom  is  shown :  To  the  complainant,  30  days  from  date  of 
conclusion  of  the  testimony ;  to  the  defendants  and  interveners, 
15  days  after  the  date  fixed  for  the  complainant;  and  to  com- 
plainant for  reply  brief,  10  days  after  the  date  fixed  for  defend- 
ants or  interveners.  Briefs  not  filed  and  served  on  or  before  the 
dates  fixed  therefor  will  not  be  received  unless  a  special  order 
therefor  is  made  by  the  Commission.  All  briefs  must  be  filed 
with  the  secretary  and  be  accompanied  by  notice,  showing  serv- 
ice upon  the  adverse  parties,  and  15  copies  of  each  brief  shall  be 
furnished  for  the  use  of  the  Commission,  unless  otherwise  or- 
dered. Applications  for  extension  of  time  in  which  to  file  briefs 
shall  be  by  petition,  in  writing,  stating  the  facts  on  which  the  ap- 

»=Rule  13.  ^ 


398  Procedure  op  Interstate  Commerce  Commission.   [§  282. 

plication  rests,  which  must  be  filed  with  the  Commission  at  least 
five  days  before  the  time  for  filing  such  brief. 

Oral  argument  will  be  had  only  as  ordered  by  the  Commission. 
Applications  therefor  must  be  made  at  the  hearing  or  in  writing 
within  10  days  after  the  completion  of  proof.^^ 

§  282.  Rehearings. — Applications  for  reopening  a  case  after 
final  submission,  or  for  rehearing  after  decision,  must  be  by  pe- 
tition stating  specifically  the  grounds  relied  upon ;  such  petition 
must  be  served  by  the  party  filing  same  upon  the  opposing  coun- 
sel who  appeared  at  the  hearing  or  on  brief. 

If  such  application  be  to  reopen  the  case  for  further  evidence^ 
the  nature  and  purpose  of  such  evidence  must  be  briefly  stated, 
and  the  same  must  not  be  merely  cumulative.  If  the  application 
be  for  a  rehearing,  the  petition  must  specify  the  matters  claimed 
to  be  erroneously  decided,  with  a  brief  statement  of  the  alleged 
errors.  If  any  order  of  the  Commission  is  sought  to  be  reversed, 
changed,  or  modified  on  account  of  facts  and  circumstances  aris- 
ing subsequent  to  the  hearing,  or  of  consequences  resulting  from 
compliance  therewith,  the  matters  relied  upon  by  the  applicant 
must  be  fully  set  forth.  At  least  10  copies  of  all  such  applica- 
tions must  be  filed. ^^ 

§  283.  Free  Copies  of  Transcripts  of  Evidence,  When 
Furnished. — One  copy  of  the  testimony  will  be  furnished  by 
the  Commission  for  the  use  of  the  complainant  and  one  copy 
for  the  use  of  the  defendant,  without  charge.  If  two  or  more 
complainants  or  defendants  have  appeared  at  the  hearing,  such 
complainants  or  defendants  must  designate  to  whom  the  copy 
for  their  use  shall  be  delivered. 

In  proceedifigs  instituted  by  the  Commission  on  its  own  mo- 
tion, including  proceedings  involving  the  suspension  of  tarifl:s, 
no  free  copies  of  testimony  will  be  furnished.''^ 

§  284.  Orders  Must  be  Complied  with  and  Notice  Thereof 
Given  to  the  Secretary  of  the  Commission. — An  order  hav- 
ing been  issued,  the  defendant  or  defendants  named  therein 
must  promptly  notify  the  secretary  of  the  Commission  on  or 
before  the  date  upon  which  such  order  becomes  effective, 
whether  or  not  compliance  has  been  made  therewith.  If  a 
change  in  rates  is  required,  the  notification  to  the  secretary  must 
be  given  in  addition  to  the  filing  of  proper  tariff's.^"* 

"'Rule   14.  '"Rule   16. 

"'Rule   15.  '"Rule   17. 


§  285.]   Procedure  of  Interstate  Commerce  Commission.  399 

§  285.  Fourth  Section  Application. — Any  common  carrier 
may  apply  to  the  Commission,  under  the  proviso  clause  of  the 
fourth  section,  for  authority  to  charge  for  the  transportation  of 
like  kind  of  property  less  for  a  longer  than  for  a  shorter  distance 
over  the  same  line,  in  the  same  direction,  the  shorter  being  in- 
cluded within  the  longer  distance,  or  for  authority  to  charge 
more  as  a  through  rate  than  the  aggregate  of  the  intermediate 
rates  subject  to  the  act.  Such  application  shall  be  by  petition, 
which  shall  specify  the  places  and  traffic  involved,  the  rates 
charged  on  such  traffic  for  the  shorter  and  longer  distances,  the 
carriers  other  than  the  petitioner  which  may  be  interested  in  the 
traffic,  the  character  of  the  hardship  claimed  to  exist,  and  the 
extent  of  the  relief  sought  by  the  petitioner.  Upon  the  filing  of 
such  a  petition,  the  Commission  will  take  such  action  as  the  cir- 
cumstances of  the  case  require. ^"^ 

§  286.  Suspensions  of  Rate  Increases,  How  Obtained. 
— Suspensions  of  rates  under  section  15  of  the  act  to  regulate 
commerce  will  not  ordinarily  be  made  unless  recjuest  in  writing 
therefore  is  made  at  least  10  days  before  the  time  fixed  in  the 
tariff  for  such  rates  to  take  effect.  Requests  for  suspension 
must  indicate  the  schedule  affected  by  its  I.  C.  C.  number  and 
give  specific  reference  to  the  parts  thereof  complained  against, 
together  with  a  statement  of  the  grounds  thereof. ''^ 

§  287.  Secretary  to  Give  Information. — The  secretary  of 
the  Commission  will,  upon  request,  advise  any  party  as  to  the  form 
of  complaint,  answer,  or  other  paper  necessary  to  be  filed  in  the 
case.^^ 

§  288.  Address  of  the  Commission. — All  communications 
to  the  Commission  must  be  addressed  to  Washington,  D.  C,  un- 
less otherwise  specifically  directed. 

§  289.  Form  of  Complaints. 

(Insert    corporate   title, 


z's.  I       zvithout   abbreviation, 

The  Railroad    Company,  [    of  carrier  (or  carriers) 

Railway    Company. J       necessary   defendants. 

The  complaint  of  the  above-named  complainant  respectfully 
shows : 

I.     That  (complainant  should  here  state  occupation  and  place 

"'Rule  IS.  "'Rule   20. 

"'Rule  19. 


400  Procedure  of  Interstate  Commerce  Commission.   [§  289. 

of  business,  also  zvJicther  it  is  a  corporation,  firm,  or  partnership, 
and  if  a  firm  or  partnership,  the  individual  names  of  the  parties 
composing  the  same  should  be  given). 

II.  That  the  defendant  (defendants)  above  named  is  a  com- 
mon carrier  (are  common  carriers)  engaged  in  the  transporta- 
tion of  passengers  and  property,  wholly  by  railroad  (partly  by 
railroad  and  partly  by  water),  between  points  in  the  state  of 

and  points  in  the  state  of  ,  and  as  such  common 

carrier  (carriers)  is  (are)  subject  to  the  provisions  of  the  act  to 
regulate  commerce  approved  February  4,  1887,  and  acts  amenda- 
tory thereof  or  supplementary  thereto. 

III.  That  (state  in  tJiis  and  subsequent  paragraphs,  to  be 
numbered  numerically,  the  matter  or  matters  intended  to  be  com- 
plained of,  naming  every  rate,  rule,  regulation,  or  practice  zvhose 
lazvfuhiess  is  challenged,  and  also  each  point  of  origin  and  point 
of  destination  betzveen  zvhich  the  rates  complained  of  are  ap- 
plied). 

{Folloziing  this  a  paragraph  or  paragraphs  should  be  inserted 
alleging  that  by  reason  of  the  facts  stated  in  the  foregoing  para- 
graphs complainant  {complainants)  has  {have)  been  subjected 
to  the  payment  of  rates  of  transportation  zvhich  zvere  zvhen  ex- 
acted, and  still  are,  unjust  and  unreasonable  in  violation  of  sec- 
tion I  of  the  act  to  regulate  commerce,  or  unduly  discriminatory 
in  z'iolation  of  sections  2,  ?,  or  4  thereof.) 

^Al^erefore  complainant  prays  that  defendants  may  be  severally 
required  to  answ^er  the  charges  herein ;  that  after  due  hearing 
and  investigation  an  order  be  made  commanding  said  defendants 
and  each  of  them  to  cease  and  desist  from  the  aforesaid  violation 
of  said  act  to  regulate  commerce,  and  establish  and  put  in  force 

and  apply  as  maxima  in  future  to  the  transportation  of  

between  the  shipping  and  destination  points  named  in  paragraph 
-- — hereof,  in  lieu  of  the  rates  named  in  said  paragraph,  such 
other  rates  as  the  Commission  may  deem  reasonable  and  just 
(and  also  pay  to  complainants  by  way  of  reparation  for  the  un- 
lawful charges  hereinbefore  described  the  sum  of ,  or  such 

other  sum  as,  in  view  of  the  evidence  to  be  adduced  herein, 
the  Commission  may  consider  complainant  entitled  to),  and 
that  such  other  and  further  order  or  orders  be  made  as  the  Com- 
mission may  consider  proper  in  the  premises  and  complainant's 
cause  may  appear  to  require. 


§  290.]   Procedure  oe  Interstate;  Comme;rce:  Commission.  401 
Dated  at  ,    19—.- 


[Complainant's    signature.]  ^^^ 
;  290.  Form  of  Answer. 


vs.  V 

The  Railroad   Company,  j 

The  above-named  defendant,  for  answer  to  the  complaint  in 
this  proceeding,  respectfully  states : 

(Here  follow  the  usual  admissions,   denials,   and  averments, 
anszvering  the  complaint  paragraph  by  paragraph.) 

Wherefore  the  defendant  prays  that  the  complaint  in  this  pro- 
ceeding be  dismissed. 

The;  Railroad    Company, 

By , 


[Title  of   officer.]  loi 
291.  Notice  of  Motion  to  Dismiss. 


vs.  > 

The;  Railroad  Company. J 

Notice  is  hereby  given  under  Rule  V  of  the  Rules  of  Prac- 
tice in  proceedings  before  the  Commission  that  a  hearing  is  de- 
sired in  this  proceeding  upon  the  facts  as  stated  in  the  complaint. 

The;  Railroad    Company,. 

By . 


[Title  of  officer.]  102 

'""Form    No.    1    prescribed   by  '"*  Form   No.   2. 

the    Commission.  *°"  Form  No.  3. 


CHAPTER  VII. 

Enforcement  by  the  Courts  of  the  Act  to  Regulate  Com- 
merce, Including  a  Discussion  of  the  Effect  Given  by 
THE  Courts  to  the  Orders  and  Findings  of  the  In- 
terstate Commerce  Commission. 

§  292.  Jurisdiction  of  the  Courts  of  the  States  to  Enforce  Provisions 
of  the  Act  to  Regulate  Commerce. 

293.  Same  Subject.     Statutory  Provisions. 

294.  Same  Subject.     Awards  of  Damages. 

295.  Same  Subject.     Suit  for  Damages  Against  an  Initial   Carrier. 

296.  Compelling   a    Common    Carrier   to   Transport. 

297.  Jurisdiction.      General    Statement. 

298.  Commerce   Court. 

299.  Jurisdiction    of   the    Courts   of   the   United    States   to    Compel 

the   Attendance   of  Witnesses   Before   the    Commission   and 
Enforce  Oibedience  to  Act. 

300.  Enforcement    of    Forfeitures. 

301.  Mandamus. 

302.  To  Enforce  Rights  under  Act  to  Aid  Railroads  and  Telegraph 

Companies. 

303.  Injunctions  in  Aid  of  Enforcement  of  Act. 

304.  Injunctions   Against   Unlawful   Rates    and   Practices. 

305.  Same   Subject.     Conclusion. 

306.  Same    Subject.      Effect   of   Amendment    of   1910. 

307.  Same   Subject.     Venue. 

308.  Jurisdiction  of  Suits  to  Set  Aside  Orders  of  the  Commission. 

309.  Grounds  upon  Which  Orders  of  the  Commission  May  Be  Set 

Aside. 

310.  Same      Subject.       Violations     of     the      Constitution — Fourth 

Amendment. 

311.  Violation    of    the    Fifth    Amendment. 

312.  Mistake   of  Law. 

313.  Lack    of   Jurisdiction. 

314.  The  Substance  and  Not  the  Form  of  the  Finding  Determines. 

315.  Disregard  of  the  Legal  Effect  of  Undisputed  Testimony. 

316.  Lack   of   Full    Hearing. 

317.  Awards   of  Damages. 

318.  Awards    of   Damages — Parties   and    Procedure. 

319.  Procedure  to  Enforce  or  Annul  Orders  of  the  Commission. 

320.  Interlocutory  Injunctions — Three  Judges  to  Hear  Application 

for. 

321.  Interlocutory  Injunctions — Notice  and  Hearing. 

322.  Interlocutory  Injunctions — Appeal  from. 

323.  Appeal   from    Final   Judgment. 

324.  Venue    of   Suits. 

402 


§  292.]  OF  Act  to  Regulate:  Commerce.  ^03 

§  292.  Jurisdiction  of  the  Courts  of  the  States  to  En- 
force the  Provisions  of  the  Act  to  Regulate  Commerce. — 

The  act  to  regulate  commerce  in  the  rights  therein  specified  does 
httle  more  than  express  the  law  as  it  existed  at  common  law. 
The  right  to  reasonable  rates  was  admittedly  a  common-law  right, 
and  the  Supreme  Court  of  the  United  States  we  have  seen  supra 
Sec.  133  decided  that  equality  of  treatment  under  substantially 
similar  circumstances  was  also  a  common-law  right.  The  prohi- 
bition of  pooling,  the  requirement  of  continuous  transportation, 
that  through  routes  and  joint  rates  shall  be  established,  that  tariffs 
shall  be  filed,  maintained  and  made  public,  and  the  other  limita- 
tions on  the  conduct  of  common  carriers,  while  requiring  more 
than  was  their  duty  at  common  law,  are  but  provisions  to  make 
effective  the  great  common-law  right  to  reasonable  charges  with- 
out unjust  discrimination  or  undue  preference.  These  remedies 
and  others  provided  in  the  act  are  in  addition  to,  although  not  in 
derogation  of,  the  common-law  remedies. 

Congress  may  provide  that  the  judicial  power  of  the  United 
States  shall  be  exercised  by  the  federal  courts  to  the  exclusion 
of  any  jurisdiction  in  the  courts  of  the  states,^  but,  as  said  by  the 
Supreme  Court:  "If  an  act  of  Congress  gives  a  penalty  (mean- 
ing civil  and  remedial)  to  a  party  aggrieved,  without  specifying 
a  remedy  for  its  enforcement,  there  is  no  reason  why  it  should 
not  be  enforced,  if  not  provided  otherwise  by  some  act  of  Con- 
gress, by  a  proper  action  in  a  state  court. "^  In  the  same  case  the 
court  said  that  the  jurisdiction  of  the  federal  courts  is  "some- 
times exclusive  by  implication,"  while  in  a  more  recent  case  the 
Supreme  Court  said  that  "jurisdiction  (of  the  state  courts)  is 
not  defeated  by  implication. "^  What  may  be  stated  as  the  rule 
in  harmony  with  these  decisions  is,  where  by  express  enactment 
of  the  statute  the  jurisdiction  of  the  state  courts  is  excluded,  or 
where  the  character  of  the  remedy  provided  is  such  that  the 
evident  legislative  intent  was  to  exclude  such  courts,  the  federal 
courts  have  exclusive  jurisdiction;  but  where  no  such   definite 

^  Martin  v.  Hunter,  1  Wheat.  14  "  Claflin  v.  Houseman,  93  U.  S. 

U.    S.   304.   377,   4   L.    Ed.    97;    Os-       3    Otto    130,   23    L.    Ed.   833. 
born     V.     Bank     of     the     United  'Galveston,    H.    &    S.    A.    Ry. 

States,  9  Wheat.  738,  6  L.  Ed.  Co.  v.  Wallace,  »23  U.  S.  481,  56 
204.  L.    Ed.   516,   32    Sup.    Ct.    205;    af- 

firming  117    S.  W.    109. 


404  Enforcement  by  the  Courts  [§  293. 

statement  or  clear  legislative  intent  exists,  the  law  will  not  be 
construed  to  exclude  by  implication  the  exercise  by  the  state 
courts  of  jurisdiction. 

§  293.  Same  Subject — Statutory  Provisions. — \\henever 
a  court  is  named  in  the  Acts  to  Regulate  Commerce  it  is  a  fed- 
eral court,  except  in  the  Amendment  of  June  18th,  1910,  to  sec- 
tion 16,  by  which  Amendment  suits  on  awards  of  damages  may 
be  filed  either  in  a  federal  court  or  "in  any  state  court  of  general 
jurisdiction  having  jurisdiction  of  the  parties."  Section  9  of  the 
Act  provides :  "That  any  person  or  persons  claiming  to  be  dam- 
aged by  any  common  carrier  subject  to  the  provisions  of  this  Act 
*  *  *  may  bring  suit  =!=  *  *  in  any  district  or  circuit  court 
of  the  United  States."'*  Nowhere  in  the  statute  is  there  express 
prohibition  against  a  state  court  exercising  jurisdiction,  but  some 
of  the  procedure  is  such  that  it  is  clear  that  the  legislative  in- 
tent was  to  exclude  the  jurisdiction  of  the  state  courts. 

The  Amendment  to  section  16  above  shows  a  legislative  con- 
struction indicating  a  necessity  for  a  specific  provision  giving  ju- 
risdiction to  the  courts  of  the  states.  That  a  state  court  may  en- 
force laws  of  Congress  was  held  in  the  Second  Employers'  Lia- 
bility cases,"''  and  in  the  course  of  this  chapter  the  cases  in  which 
the  state  courts  have  concurrent  jurisdiction  will  be  stated,  as 
will  also  those  questions  over  which  it  would  seem  that  the 
state  courts  have  no  jurisdiction. 

§  294.  Same  Subject — Awards  of  Damages. — By  the  ex- 
press provisions  of  section  16  of  the  Act  to  Regulate  Commerce 
the  state  courts  have  jurisdiction  over  suits  brought  on  an  order 
issued  by  the  Commission  for  the  payment  of  money,  although 
prior  to  the  Amendment  of  June  18,  1910,  it  would  seem  that  no 
such  jurisdiction  existed.*^     That  such  suits  may  be  brought  in  a 


'The       abolition       of       Circuit  York,    N.    H.    &    H.    R.    Co..    173 

Courts   would   leave   this   to   read  Fed.   694. 

"District     Court     of     the    United  '  Connor  v.  Vicksburg  &  M.  R. 

States,"    Judicial    Code.    Sec.    289.  Co.,  36  Fed.  273,  1   L.  R.  A.  331; 

^  Mondou    V.    New    York,    New  Kentucky   &   Indian?   Bridge   Co. 

H.  &  H.  R.  Co.,  223  U.  S.  1,  57,  V.  Louisville  &  N.  R.  Co.,  37  Fed. 

56    L.    Ed.    327,    Sup.    Ct.    169;    re-  567,    614,   2   L.    R.   A.   289,   2   I.    C. 

versing  Hoxie  v.  N.  Y.,  N.  H.  &  R.    351;    Van    Patten   v.    Chicago, 

H.   R.   Co..   82   Conn.   373,  73   Atl.  M.   &  St.  P.  R.   Co.,  74  Fed.  981. 

754  and  affirming,  Walsh  v.  New  See    also    Sheldon   v.   Wabash    R. 

Co.,   105   Fed.  785. 


§  295.]  OF  Act  to  Regulate  Commerce.  405 

state  court  has  been  stated  by  the  Supreme  Court  which  gave  the 
Amendment  to  section  16  as  authority  for  such  statement  J 

In  the  case  in  which  the  statement  just  referred  to  was  made, 
suit  had  been  brought  in  a  state  court  from  which  it  was  removed 
to  a  federal  district  court.  The  complainant  alleged  a  finding  of 
the  Interstate  Commerce  Commission  that  a  particular  rate 
Avas  unreasonable  to  a  designated  extent,  although  there  had  bee;i 
no  award  of  damages  to  the  plaintiff.  The  cause  of  action, 
therefore,  if  any  existed,  was  based  upon  section  8  of  the  Act 
and  must  have  been  brought  under  section  9  and  not  under  sec- 
tion 16.  Under  these  facts  the  district  court  held  that  the  state 
court  had  no  jurisdiction,  although  the  federal  court  would 
had  the  action  been  brought  therein.^  The  Supreme  Court,  as 
shown  supra,  dismissed  a  direct  writ  of  error  thereto,  holding 
that  the  jurisdiction  of  the  federal  court  was  not  involved  and 
that  the  question  was  merely  one  where  was  to  be  determined 
whether  or  not  a  cause  of  action  was  stated.  It  has,  however, 
been  held  that  a  suit  for  damages  under  sections  8  and  9  "could 
only  be  brought  in  a  district  or  circuit  [sic)  court  of  the  United 
States,"  and  then  when  the  reasonableness  of  rates  was  involved 
only  after  an  order  by  the  Interstate  Commerce  Commission.^ 

Where  suit  was  brought  in  a  state  court  for  damages  for  al- 
leged discrimination  prior  to  a  determination  by  the  Interstate 
Commerce  Commission  that  unlawful  discrimination  existed,  the 
Supreme  Court  sustained  a  judgment  for  the  carrier  in  an  opin- 
ion which  would  have  applied  with  the  same  force  had  suit  been 
brought  in  a  federal  court. ^*^ 

§  295.  Same  Subject — Suits  for  Damages  against  an  Ini- 
tial Carrier. — At  common  law  a  carrier  must  transport  to  the 
end  of  its  line,  but  when  the  commodity  was  delivered  to  the 
connecting  carrier  in  good  order,  its  liability  ceased,  unless  it 
contracted  to  deliver  at  the  point  of  final  destination,  and  even 
when  such  a  contract  was  made,  by  the  same  contract  the  carrier 

'Darnell  v.    Illinois    C.    R.    Co..  "Mitchell    Coal   &   Coke   Co.   v. 

225  U.   S.  243,   56   L.    Ed.   1072,   32  Penn.    R.    Co.,    230    U.    S.    247,    57 

Sup.    Ct.   760;   Dismissing   writ    of  L.    Ed.    1472,  33   Sup.   Ct.   916. 
error   from    the    decision    in    Dar-  ^''  Robinson   v.    Baltimore    &   O. 

nell  V.  Illinois  C.  R.  Co.,  190  Fed.  R.   Co.,   222  U.   S.   506,   56   L.   Ed. 

656.  288,    32    Sup.     Ct.    114;    affirming 

'  Darnell   v.    Illinois    C.    R.    Co.,  same  styled  case,  64  W.  Va.  .406, 

190   Fed.   656.  63  S.   E.  323. 


406  Enforcemijnt  .by  the;  Courts  [§  296. 

could  limit  its  liability  to  its  own  line.  Where  commodities  were 
transported  over  several  lines  and  damage  resulted,  the  shipper 
was  frequently  unable  to  prove  which  particular  carrier  was  lia- 
ble for  the  loss  or  injury.^^  The  last  connecting  carrier  receiving 
goods  "as  in  good  order"  was  presumptively  liable  for  the  damage. 
This  is  a  statute  in  Georgia. i-  To  make  it  possible  for  shippers 
to  collect  for  loss  and  damage  and  at  the  same  time  to  allow  car- 
riers to  adjust  between  themselves  the  loss  so  that  the  innocent 
would  not  suffer,  the  Amendment  of  1906,  known  as  the  Hep- 
burn Act,  gave  the  shipper  the  right  to  recover  for  loss  or  dam- 
age against  the  carrier  receiving  the  commodity  for  shipment. ^^ 
Speaking  of  this  provision,  the  Supreme  Court  said:  "The  cause 
of  action  w^as  the  loss  of  plaintiff's  property  *  *  *  and  that  loss 
is  in  no  way  traceable  to  the  violation  of  any  provision  of  the 
Act  to  Regulate  Commerce. "^^ 

There  is  no  doubt  that  in  suits  under  this  provision  against  an 
initial  carrier  for  loss  or  damage  to  freight  that  action  is  main- 
tainable in  state  courts. ^^ 

§  296.  Compelling  a  Common  Carrier  to  Transport. — A 
shipper  has  a  right  to  have  his  commodities  transported  by  a 

"Hutcheson     on     Carriers,     3d  Connally,    111   U.    S.    624,   637,    28 

Ed.,  Sec.  225  et  seq.  L.   Ed.  542,  4  Sup.  Ct.  544;  Cases 

^^  Georgia  Code  1910,  Sec.  2752.  brought     in      state      courts:      St. 

"An     excellent     statement     of  L.   S.   W.   Ry.    Co.   v.   Alexander, 

the    reasons    for   this    amendment  227   U.   S.   218,   57   L.   Ed.   486,   33 

was     made     by    Judge    Speer     in  Sup.  Ct.  245;  Wells,  Fargo  &  Co. 

Riverside  Mills  v.  Atlantic  C.   L.  v.   Neiman-Marcus  Co.,  227  U.  S. 

R.    Co.,    168    Fed.    987,    990.    991.  469,    57    L.    Ed.    600,    33    Sup.    Ct. 

Except  as  to  attorney's  fees  this  267;  Wells,  Fargo  &  Co.  v.  Nei- 

case  was  affirmed,  Atlantic  C.  L.  man-Marcus   Co.,  125  S.  W.  614; 

R.   Co.  V.  Riverside  Mills,  219  U.  Norfolk    &   W.    Ry.    Co.   v.   Dixie 

S.    186,    '55    L.    Ed.    167,    31    Sup.  Tobacco  Co.,  228  U.  S.  593,  57  L. 

Ct.    164,    31    L.    R.    A.    (N.    S.)    7.  Ed.   980,   33   Sup.   Ct.   609,   111  Va. 

See      also     fost,    Sec.    439,     and  813,  69  S.  E.  1106;  Southern  Pac. 

Woodruff     V.    Atlantic    C.    L.    R.  Co.  v.  Crenshaw,  5  Ga.  App.  675, 

Co.,    138    Ga.    763.    76    S.    E.    45,  63    S.    E.    865.      See    also    cases, 

citing    Sec.    201    of   the    first    Ed.  cited,  and  Central  of  Ga.  Ry.  Co. 

of  this  book.  v.  City  Mills  Co.,  128  Ga.  841,  58 

"Atlantic  C.  L.  R.  Co.  v.  Riv-  S.   E.   197:  Atlantic   C.  L.  R.   Co. 

erside   Mills,  supra.  v.    Henderson,    131    Ga.   75,    61   S. 

''Galveston,     H.    &    S.    A.     Ry.  E.     1111;     Southern     Ry.     Co.    v. 

Co.  V.  Wallace.  223  U.   S.  481,  56  Frank,   5   Ga.   App.   574,    63   S.    E. 

L.    Ed.    516,    32    Sup.    Ct.    205;    af-  656. 
firming— 117   S.  W.   169;   Robb   v. 


§  296.]  OF  Act  to  Regulate  Commerce.  407 

common  carrier.  This  right  as  to  interstate  shipments  may  not 
be  taken  away  by  a  state  statute,  and  a  shipper  seeking  relief  be- 
cause of  a  refusal  of  a  carrier  to  accept  interstate  shipments  may 
invoke  the  -jurisdiction  of  a  state  court,  the  question  involved 
being  one  of  general  law.  This  principle  was  held  in  a  case 
brought  by  a  manufacturer  of  intoxicating  liquors  to  compel 
the  transportation  of  his  product  in  interstate  commerce.  The 
suit  was  brought  in  a  state  court  and  removed  to  a  federal  court ; 
the  jurisdiction  of  the  latter  court  therefore  rested  upon  the  orig- 
inal jurisdiction  of  the  state  court.  While  the  question  of  the 
jurisdiction  of  the  state  court  was  not  discussed,  the  jurisdic- 
tional question  raised  being  the  claim  that  no  court  had  juris- 
diction prior  to  action  by  the  Interstate  Commerce  Commission, 
the  fact  that  jurisdiction  was  retained  and  relief  granted  was  a 
holding  that  the  state  court  had  jurisdiction.^^ 

When  a  carrier  engaged  in  interstate  commerce  violated  its 
common-law  duty  to  treat  all  shippers  alike  by  refusing  to  trans- 
fer cars  between  a  flour  mill  and  the  line  of  a  connecting  carrier, 
a  state  court  had  jurisdiction  to  compel  a  performance  of  this 
duty,  at  least  until  Congress  or  the  Interstate  Commerce  Com- 
mission had  taken  specific  action. i'  This  rule  would  hardly  ap- 
ply now  as  to  interstate  commerce  because  Congress  has  enlarged 
the  jurisdiction  of  the  Commission  in  this  respect. ^^ 

"Louisville   &  N.   R.   Co.  v.   F.  affirming     Illinois    C.    R.    Co.     v. 

W.   Cook   Brewing  Co.,   172   Fed.  Mulberry  Hill   Coal    Co.,   257   11!. 

117,  96  C.   C.  A.  322,  40  L.   R.   A.  SO.   100  N.   E.   151. 
(N.      S.)      798;      affirming     same  ^'Lovelace    Flour    Mills    Co.    v. 

styled    case,    223   U.    S.   70,    56    L.  Mo.   Pac.    Ry.   Co.,   74   Kans.   808, 

Ed.  355,  32  Sup.  Ct.  189.     Where  88     Pac.    72;    affirmed.    Mo.     Pac. 

nothing     but     the     common     law  Ry.   Co.   v.   Lovelace   Flour   Mills 

duty   to   furnish   cars   is   involved,  Co..  211  U.  S.  612,  53  L.  Ed.  352. 

the  state  courts  have  jurisdiction  29  Sup.  Ct.  214. 
to  maintain  suits  for  damages  for  "  Baltimore     &    O.    R.    Co.     v. 

a    failure    to    perform    that    duty.  United     States     ex    rel.     Pitcairn 

Penn.  R.  Co.  v.  Puritan  Coal  Co.,  Coal  Co.,  215  U.  S.  481,  54  L.  Ed-. 

237    U.    S.    121,    59    L.    Ed.    — ,    35  292,    30    Sup.    Ct.    164;    reversing 

Sup.    Ct.   484,   affirming   Penn.    R.  United     States     ex    rel.     Pitcairn 

Co.  V.  Puritan   Coal   Co..  237  Pa.  Coal    Co.   v.    Baltimore    &  O.    R. 

420,  85  Atl.  426,  Ann.  Cas.  1914B  Co.,  165  Fed.  113,  91  C.  C.  A.  147, 

37;    Illinois    C.    R.    Co.    v.    Mul-  and   see  post,   this   chapter.    Sees, 

berry    Hill    Coal    Co.,    238    U.    S.  297,   299.     But  when  the   suit  re- 

275,  59  L.  Ed.  — ,  35  Sup.  Ct.  760;  lated   "solely   to   interstate   trans- 


408  Enforcement  by  the  Courts  [§  297. 

§  297.  Jurisdiction — General  Statement. — Judicial  power 
may  be  exercised  to  enforce  rights  under  the  Commerce  Acts 
sometimes  without  prior  action  by  the  Interstate  Commerce  Com- 
mission and  sometimes  only  after  the  Commission  has  acted  and 
to  enforce  such  action  or  to  determine  the  legality  thereof. 

That  section  9,  giving  a  person  damaged  by  violation  of  the 
Act  the  option  to  bring  complaint  before  the  Commission  or  suit 
in  a  district  or  circuit  court,  and  section  22  providing  that  com- 
mon-law remedies  were  neither  abridged  nor  altered,  should  be 
construed  in  connection  with  the  whole  Act,  and  that  as  so  con- 
strued the  courts  had  no  jurisdiction  to  determine  whether  a  rate 
published  as  prescribed  by  law  was  unlawful,  was  held  by  the  Su- 
preme Court  in  the  Abilene  case.^^ 

There  are  sections  of  the  Act  giving  jurisdiction  to  the  courts 
without  prior  action  by  the  Commission.  Cases  arising  thereunder 
will  be  discussed  in  the  course  of  this  chapter.  The  principle  de- 
termining the  circumstances  under  which  the  Commission  alone 
can  act  can  not  be  better  or  more  briefly  stated  than  by  copying 
from  an  opinion  of  the  Supreme  Court  written  by  Mr.  Justice 
Lamar.    He  said : 

"Under  the  statute  there  are  many  acts  of  the  carrier  wliich 
are  lawful  or  unlawful  according  as  they  are  reasonable  or  un- 
reasonable, just  or  unjust.  The  determination  of  s'ach  issues 
involves  a  comparison  of  rate  with  service,  and  calls  for  an  ex- 
ercise of  the  discretion  of  the  administrative  and  rate-regulating 
body.  For  the  reasonableness  of  rates,  and  the  permissible  dis- 
crimination based  upon  difference  in  conditions  are  not  matters 
of  law.  So  far  as  the  determination  depends  upon  facts,  no  ju- 
risdiction to  pass  upon  the  administrative  questions  involved  h?s 
been  conferred  upon  the  courts.  That  power  has  been  vested  in 
a  single  body  so  as  to  secure  uniformity  and  to  prevent  the  vary- 
ing and  sometimes  conflicting  results  that  would  flow  from  the 
different  views  of  the  same  facts  that  might  be  taken  by  dififerent 
tribunals."2o 

portation,"    the    state    court    may  "Texas  &  Pac.  Ry.  Co.  v.  Abi- 

enforce   a  duty  to   make   connec-  lene    Cotton    Oil    Co.,    204    U.    S. 

tions,   Chicago,   M.   &   St.   P.   Ry.  426,    51    L.    Ed.    553.    27    Sup.    Ct. 

Co.  V.  Iowa,  233  U.  S.  334,  58  L.  350. 

Ed.   988,   34   Sup.   Ct.   592;   affirm-  ="  Penn.  R.  Co.  v.  Int.  Coal  Co., 

ing   same    styled    case,    152    Iowa  230  U.  S.   184,  57   L.   Ed.   1446,  33 

317,   130  N.  W.   802.  Sup.   Ct.   893. 


§  298.]  OF  Act  to  Regulate  Commerce.  409 

In  cases  where  prior  action  of  the  Interstate  Commerce  Com- 
mission is  not  necessary,  and  when  the  statute  does  not  exclude 
the  state  courts,  and  in  cases  where  the  suit  is  based  on  a  com- 
mon-law right,  the  state  courts  may  exercise  jurisdiction. -^ 

§  298.  Commerce  Court. — By  the  amendment  of  1910,  a 
commerce  court  was  created  and  given  exclusive  jurisdiction  as 
follows : 

First.  All  cases  for  the  enforcement,  otherwise  than  by  adju- 
dication and  collection  of  a  forfeiture  or  penalty  or  by  infliction 
of  criminal  punishment,  of  any  order  of  the  Interstate  Commerce 
Commission  other  than  that  for  the  payment  of  money. 

Second.  Cases  brought  to  enjoin,  set  aside,  annul,  or  suspend 
in  whole  or  in  part  any  order  of  the  Interstate  Commerce  Com- 
mission. 

Third.  Such  cases  as  by  section  three  of  the  act  entitled  "x\n 
Act  to  further  regulate  commerce  with  foreign  nations  and 
among  the  states,"  approved  February  19,  1903,  are  authorized 
to  be  maintained  in  a  circuit  court  of  the  United  States. 

Fourth.  All  such  mandamus  proceedings  as  under  the  provi- 
sions of  section  20  or  section  23  of  the  act  entitled  "An  act  to 
regulate  commerce,"  approved  February  4,  1887,  as  amended, 
are  authorized  to  be  maintained  in  a  circuit  court  of  the  United 
States. -- 

This  court  was  by  a  provision  of  the  Appropriations  Act  ap- 
proved October  22,  1913,  "abolished  from  and  after  December 
31,  1913,  and  the  jurisdiction  vested  in  said  Commerce  Court 
*  *  *  is  (w^as)  transferred  to  and  vested  in  the  several  dis- 
trict courts  of  the  United  States ;"  and  it  was  further  provided 
that  "the  procedure  in  the  district  courts  in  respect  to  cases  of 
which  jurisdiction  is  conferred  upon  them  by  this  act  shall  be 

''Starks    Co.    v.    Grand    Rapids  v.     Hite.     166     Fed.     976.      Cases 

&  I.   Ry.   Co.,   165   Mich.   642.   1.31  where  jurisdiction  was  held  to  be 

N.  W.  143;  Hardaway  v.  So.  Ry.  exclusively  in  the  Federal  courts: 

Co.,  90  S.  C.  485,  75  S.   E.   1020;  Pittsburg  C.  C.  &  St.  L.  Ry.  Co. 

Lilly    Co.    V.    Northern    Pac.    Ry.  v.  Wood,  84  N.  E.  1009;  Note  16 

Co.,   64  Wash.   689,   117   Pac.   401;  supra. 

Kansas  City  So.  Ry.  Co.  v.  Tonn,  "Act  June   18,   1910.   chap.   ?.09, 

102  Ark.  20,   143  S.  W.   577;   Chi-  36   Stat,   at   L.,   p.   539,   Sees.   1   to 

cago,  R.  I.  &  P.  Ry.  Co.  v.  Lena  5    inclusive,   Judicial    Code,    Sees. 

Lumber   Co.,   99   Ark.   105,   137   S.  200  to  214  inclusive. 
W.   562;   Central  of  N.  J.  R.   Co. 


410  Enforcement  by  the  Courts  [§  299. 

the  same  as  that  heretofore  prevaihng  in  the  Commerce 
Court."-3 

The  procedure  in  the  district  courts  in  cases  in  which  juris- 
diction formerly  existed  in  the  Commerce  Court  as  well  as  the 
procedure  in  other  cases  arising  under  the  Act  to  Regulate  Com- 
merce will  be  discussed  in  subsecjuent  sections  of  this  chapter. 

§  299.  Jurisdiction  of  the  Courts  of  the  United  States  to 
Compel  the  Attendance  of  Witnesses  before  the  Commis- 
sion and  Enforce  Obedience  to  Act. — Upon  request  of  the 
Commission,  it  shall  be  the  dut}'  of  any  district  attorney  of  the 
United  States  to  whom  the  Commission  may  apply  to  institute  in 
the  proper  court  and  to  prosecute  under  the  direction  of  the 
Attorney-General  of  the  United  States  all  necessary  proceedings 
for  the  enforcement  of  the  provisions  of  this  act.  In  case  of 
disobedience  of  the  siibpavia  of  the  Commission,  it  may  invoke 
the  aid  of  any  court  of  the  United  States  in  requiring  the  attend- 
ance and  testimony  of  witnesses  and  the  production  of  books, 
papers,  and  documents  under  the  provisions  of  the  Act  to  Regu- 
late Commerce.  And  any  of  the  district  courts  of  the  United 
States  within  the  jurisdiction  of  which  such  inquiry  is  carried  on 
may,  in  case  of  contumacy  or  refusal  to  obey  a  subpoena  issued  to 
any  common  carrier  subject  to  the  provisions  of  this  act,  or  other 
person,  issue  an  order  requiring  such  common  carrier  or  other 
person  to  appear  before  said  commission  and  produce  books  and 
papers  if  so  ordered  and  give  evidence  touching  the  matter  in 
question ;  and  any  failure  to  obey  such  order  of  the  court  may 
be  punished  by  such  court  as  a  contempt  thereof. 

Section  9  of  the  original  Act  provides  that  certain  named  ofifi- 
cers  and  agents  shall  testify  and  that  "the  claim  that  any  such  tes- 
timony or  evidence  may  tend  to  criminate  the  person  giving  j>uch 
evidence  shall  not  excuse  such  witness  from  testifying,  but  such 
evidence  or  testimony  shall  not  be  used  against  such  person  on 
the  trial  of  any  criminal  proceeding."  The  Supreme  Court  hav- 
ing held  that  the  law  must  give  the  witness  absolute  immunity 
from  prosecution  before  he  could  be  compelled  to  testify,-'*  the 
Compulsory  Testimony  Act,-^  the  Immunity  of  Witnesses  Act,-'' 

^  For   a   discussion  of  the   pro-  "^  Counselman      v.      Hitchcock, 

cedure   in    the    Commerce    Court,  142    U.    S.    547,    35    L.    Ed.    1110, 

see  article  thereon  by  the  author  13   Sup.   Ct.   195. 

hereof  in   Standard   Encyclopedia  "  Sec.   479,   post. 

of  Procedure,  vol.   5,   p.   153.  "''Sec.   4S0,  post. 


§  300.]  OF  Act  to  Regulate  Commerce.  411 

and  section  3  of  the  Elkins  Act  -'  met  this  condition  and  a  wit- 
ness may  be  required  to  testify  as  provided  in  those  statutes,-^ 
subject  of  course  to  the  rule  that  the  testimony  is  relevant  to  a 
question  over  which  the  Commission  has  jurisdiction. -*> 

§  300.  Enforcement  of  Forfeitures. — Section  16  of  the  Act 
provides  for  forfeitures  for  any  neglect  to  obey  an  order  of  the 
Commission  made  under  authority  of  section  15.  A  forfeiture 
is  provided  for  failure  to  comply  with  the  duties  of  carriers  un- 
der the  valuation  of  the  Act,^'^  as  also  under  the  government- 
aided  railroad  and  telegraph  Act."i  A  carrier  who  after  written 
request  to  quote  a  rate  refuses  so  to  do  or  misquotes  the  rate 
is  subject  to  a  penalty  of  $250.00.^- 

These  forfeitures  are  recoverable  in  a  court  suit  in  the  name 
of  the  United  States  brought  in  the  district  where  the  carrier 
has  its  principal  office,  or  through  which  the  road  runs. 

It  is  the  duty  of  the  various  district  attorneys,  under  the  direc- 
tion of  the  Attorney  General  of  the  United  States,  to  prosecute 
for  the  recovery  of  forfeitures.  The  costs  and  expenses  of  such 
prosecution  shall  be  paid  out  of  the  appropriation  for  the  ex- 
penses of  the  courts  of  the  United  States. -"^ 

§  301.  Mandamus. — Section  19  of  the  Act  gives  jurisdiction 
to  the  district  courts  of  the  United  States  upon  application  of 
the  Attorney  General  at  the  request  of  the  Commission  to  issue 
a  writ  or  writs  of  mandamus  to  compel  a  compliance  with  the 
provisions  of  that  section,  and  general  authority  to  be  exercised 
in  like  manner  is  given  to  enforce  by  mandamus  compliance  with 
any  of  the  provisions  of  the  act.  This  general  authority  was  con- 
ferred by  the  amendment  of  1906,  to  meet  a  decision  of  the  Su- 
preme Court  holding  that  no  jurisdiction  existed  to  compel  a  car- 
rier to  file  reports  with  the  Commission,  although  the  court  stated 
that  Congress  could  confer  such  authority. ^^ 

"Sec.    457,    post.  211  U.   S.  407,  419,  420,  53  L.   Ed. 

^  Brown   v.   Walker,    161    U.    S.  253,    29    Sup.    Ct.    115.      See    also 

591,    40   L.    Ed.    819,    16    Sup.    Ct.  Sec.  219,  ante,  and  United  States 

644.  V.   Skinner,   218   Fed.  870. 

'"Int.    Com.    Com.    v.    Brimson,  ^'' Post,    Sec.    384. 

154  U.   S.  447,   38   L.   Ed.   1047,   14  ^*  Sec.   474,   post. 

Sup.  Ct.  1125;  4  I.  C.  R.  545;  Int.  ''Sec.  6  of  Act;   Sec.  368,  post. 

Com.    Com.    v.    Baird,    194    U.    S.  ''Sec.  16  of  Act;  post,  Sec.  413. 

25,  48  L.  Ed.  S60,  867,  24  Sup.  Ct.  "  United    States    ex    rel.    Knapp 

563;  Harriman  z:  Int.  Com.  Com.,  r.   Lake   Shore   &   M.   S.   Ry.   Co., 


412  Enforcement  by  the  Courts  [§  302. 

District  courts  of  the  United  States  have  jurisdiction  upon  the 
relation  of  any  person,  firm,  or  corporation  alleging  a  violation 
of  the  provisions  of  the  act  which  prevents  the  relator  from  hav- 
ing interstate  traffic  moved  by  a  common  carrier  at  the  same  rates 
as  are  charged,  or  upon  terms  or  conditions  as  favorable  as  those 
given  by  said  common  carrier  for  like  traffic  under  similar  con- 
ditions to  any  other  shipper,  to  issue  a  writ  or  writs  of  manda- 
mus against  said  common  carrier,  commanding  such  common  car- 
rier to  move  and  transport  the  traffic,  or  to  furnish  cars  or  other 
facilities  for  transportation  for  the  party  applying  for  the  writ. 
The  writ  of  mandamus  is  cumulative  and  may  issue  upon  such 
terms  as  the  court  may  prescribe,  notwithstanding  there  may  be 
undetermined  questions  of  fact  as  to  the  proper  compensation  to 
the  carrier. ^■^  The  remedy  is  limited  to  compelling  the  perform- 
ance of  duties  w'hich  are  either  so  plain  as  not  to  require  pre- 
vious action  by  the  Commission  or  which  plainly  arise  from  some 
provision  of  the  statute  or  existing  order  of  the  Commission 
within  the  lawful  scope  of  its  authority.^'''  This  writ,  however, 
can  not  issue  to  prevent  vmdue  discrimination  prior  to  action  by 
the  Commission  determining  that  the  particular  acts  complained 
of  are  unlawful.  When  it  is  the  duty  of  the  Interstate  Commerce 
Commission  to  act,  action  may  be  compelled  by  the  writ.-^" 

§  302.  To  Enforce  Rights  under  the  Act  to  Aid  Railroads 
and  Telegraph  Companies. — By  section  4  of  the  act  of  August 
7,  1888,  entitled  "An  act  to  aid  in  the  construction  of  a  railroad 
and  telegraph  lines,"  etc.,-^"  it  is  made  the  duty  of  the  Attorney 
General  of  the  United  States  by  proper  proceedings  to  protect 
and  enforce  the  rights  of  the  United  States  thereunder.  This 
section  makes  no  provision  concerning  jurisdiction  to  enforce 
these  rights  and,  under  the  rule  hereinbefore  stated,  section  292, 
it  would  seem  that  the  Attorney  General  might  file  suit  in  a  state 
court  if  he  chose  so  to  do. 

197   U.    S.    536,   49   L.    Ed.    870,   25        S.    423,    58    L.    Ed.    296,    34    Sup. 
Sup.    Ct.    538.    citing    Kendall    v.       Ct.    125. 


United  States,  12  Pet.,  37  U.  S 
584,  9  L.  Ed.  1181;  United  States  r 
Schurz,  102  U.  S.  378,  26  L.  Ed 
167.     See  under  present  law.   Int 


''Sec.  23  of  Act;  Sec.  445.  post. 
^^  See  note  18,  supra. 
^'  Int.    Com.    Com.    v.    H-umbolt 
Steamship   Co.,   224  U.   S.   474,   56 


Com.    Com.  v.   Goodrich    Transit  L.    Ed.    849,   32   Sup.    Ct.   556;   af- 

Co.,  224  U.  S.  194,  56  L.  Ed.  729,  firming  same  styled  case,  37  App. 

32  Sup.  Ct.  436;  Kansas  City  So.  D.    C.  266. 

Ry.   Co.  V.  United  States,  231  U.  ''  Sec.   473.   post. 


§  303.]  OF  Act  to  Regulate;  Commerce.  413 

The  next  section  giving  a  right  to  sue  for  penalties  and  dam- 
ages prescribes  that  the  "action  for  damages"  may  be  brought  in 
the  "district  court  of  the  United  States  in  any  state  or  territory 
in  which  any  portion  of  the  road  or  telegraph  line  of  said  com- 
pany may  be  situated."  In  construing  this  statute  it  was  held 
that  the  special  remedy  provided  did  not  exclude  the  equitable 
remedies,  for,  said  the  court :  "It  is  not  enough  that  there  is  a 
remedy  at  law.  It  must  be  plain  and  adequate,  or,  in  other  words, 
as  practical  and  efficient  to  the  ends  of  justice  and  its  prompt 
administration  as  the  remedy  in  equity. "^^ 

§  303.  Injunctions  in  Aid  of  Enforcement  of  Act. — An  or- 
der of  the  Commission  "regularly  made  and  duly  served"  may 
be  enforced  by  the  district  courts  of  the  United  States  at  the 
suit  of  the  United  States  or  any  party  injured  by  a  violation  of 
such  order. 4*^ 

The  district  courts  of  the  United  States  sitting  in  equity  may 
restrain  carriers  subject  to  the  provisions  of  the  Commerce  Acts 
from  charging  less  than  the  legally  published  rates  and  from 
committing  any  discrimination  forbidden  by  law,  and  when  the 
act  complained  of  is  alleged  to  have  been  committed  or  as  being 
committed  in  part  in  more  than  one  judicial  district  or  state,  it 
may  be  dealt  with,  inquired  of,  tried,  and  determined  in  either 
such  judicial  district  or  state,  whereupon  it  shall  be  the  duty  of 
the  court  summarily  to  inquire  into  the  circumstances,  upon  such 
notice  and  in  such  manner  as  the  court  shall  direct  and  without 
the  formal  pleadings  and  proceedings  applicable  to  ordinary  suits 
in  equity,  and  to  make  such  other  persons  or  corporations  par- 
ties thereto  as  the  court  may  deem  necessary. 

District  attorneys,  when  directed  by  the  Attorney  General,  are 
required  to  institute  and  prosecute  such  proceedings,  which  shall 
not  preclude  a  suit  for  damages  by  the  party  injured.'*^ 

Under  this  provision,  express  companies  were  enjoined  at  the 
suit  of  the  United  States  from  giving  or  using  franks. ^2 


'°  United    States   v.   Union    Pac.  "Sec.    3    Elkins    Act,    Sec.    456, 

R.    Co.,   160  U.   S.   1,   16   Sup.   Ct.  post. 

190,  40  L.  Ed.  319.  "United   States  v.  Wells-Fargo 

**  Sec.    16    of   Act    amended    by  Express    Co.,    161    Fed.    606;    ap- 

the   District    Court    Act,   by   sub-  proved,     American     Ex.     Co.     v. 

stituting    District    for    Commerce  United   States,   212  U.   S.   522,   53 

Court,    post,    Sec.    407.  L.   Ed.  635,  29   Sup.   Ct.   315. 


414  EXFORCEMEXT    BY    THE    CoURTS  [§    304. 

Rebating  may  be  enjoined/^  and  the  practice  of  paying  for 
transportation  in  advertising,  being  an  illegal  discrimination, 
could  be  and  was  enjoined.'*^  Injunction  was  sought  against  al- 
leged violation  of  the  commodities  clause  of  the  act."*^  Injunc- 
tions against  discriminations  w^ere  granted  prior  to  the  date  of 
the  Act  to  Regulate  Commerce.'*^ 

§  304.  Injunctions  against  Unlawful  Rates  and  Prac- 
tices.— Prior  to  the  amendment  of  1910,  which  gave  the  Com- 
mission power  to  suspend  tariffs  affecting  rates  or  increasing 
rates,  it  was  a  mooted  question  as  to  whether,  before  action  by 
the  Commission,  a  court  could  enjoin  a  rate  or  practice  contained 
in  a  legally  filed  tariff.  Rates  and  practices  inaugurated  before 
the  effective  date  of  that  amendment  could  not  be  held  unlawful 
by  the  Commission  until  after  a  full  hearing.  When  after  such 
hearing  the  rate  or  practice  was  declared  illegal,  damage  could 
be  awarded,  but  this  remedy  w-as  inadequate.  Each  individual 
had  to  show  the  amount  of  his  damages  and  had  to  pay  the  un- 
lawful rate  until  it  was  decided  unlawful  after  a  hearing  which 
sometimes  took  years  to  conclude.  In  a  well  considered  case  it 
was  said:  "A  denial  of  the  entire  right  of  service  by  a  refusal 
to  carry  dift'ers,  if  at  all,  in  degree  only,  and  in  the  amount  of 
damages  done,  and  not  in  the  essential  character  of  the  act, 
from  a  denial  of  the  right  in  part  by  an  unreasonable  discrim- 
ination in  terms,  facilities  or  accommodations."  ^'' 

Injunctions  were  granted  prior  to  the  enactment  of  the  Act 
to  Regulate  Commerce  as  has  been  shown  in  the  next  preceding 

'^United    States    v.    Milwaukee  257,    55    L.    Ed.    45S,    31    Sup.    Ct. 

Refrigerator    &   Transit    Co..    145  3S7. 

Fed.   1007.  *'Coe  v.  Louisville  &  N.  R.  R. 

**  Chicago,    Ind.    &    L.    Ry.    Co.  Co..   3    Fed.    775;    So.    Ex.    Co.   v. 

V.   United    States,   219   U.    S.   486,  Memphis  &  L.  R.  R.  Co.,  8  Fed. 

55    L.    Ed.    305,    31    Sup.    Ct.    272,  799,  2  McCray  570,  approved,  So. 

citing  and  following  Louisville  &  Ex.    Co.  v.   St.   L.   L  M.  &  S.,  10 

N.   R.   Co.  V.   Mottley,  219  U.   S.  Fed.  210,  3  McCray  147;  reversed, 

467,    55    L.    Ed.    297,    31    Sup.    Ct.  but    not    on    this    point,   Memphis 

265;    United    States    v.    Baltimore  &  L.   R.   Co.  v.   So.   Ex.   Co.,   117 

&    O.    R.    Co.,    225    U.    S.    306,    56  U.    S.    1,    29    L.    Ed.    791,    6    Sup. 

L.   Ed.   1100,   32   Sup.   Ct.  817.  Ct.    542,    628;    Menacho   v.   Ward, 

''United     States    ex    rel.     Atty.  27  Fed.  529,  23  Blatchf.  502;  Wat- 
Gen.   V.   Delaware    &   H.    R.    Co.,  son  v.  Sutherland,  5  Wall.  74,  72 
213   U.    S.   366,   53    L.    Ed.    836,   29  U.   S.   74.   18   L.   Ed.   580. 
Sup.    Ct.    527;    United    States    v.  "  McDuffie  v.  Portland  &  R.  R. 
Lehigh  Valley   R.   Co.,  220  U.   S.  Co.,  52  X.  H.  430,  13  Am.  Rep.  72. 


§  305.- 


OF  Act  to  Regulate  Commerce. 


415 


section.  The  Supreme  Court  cited  a  case  in  which  an  injunction 
had  been  granted  against  unlawful  discrimination/ ^  and  as- 
sumed for  the 'purposes  of  that  decision  that  rights  to  a  legal 
rate  could  be  "enforced  by  a  bill  in  equity." 

Since  the  Act  to  Regulate  Commerce  .was  passed  injunctions 
have  been  granted  by  different  district  judges,' in  some  of  which 
cases  the  district  courts  ,were  affirmed  by  the  circuit  court  of  ap- 
peals.^ ^  In  the  Macon  Grocery  Co.  case,'^^  the  question  was  pre- 
sented to  the  Supreme  Court  and  not  decided,  the  circuit  court 
of  appeals  having  been  affirmed  because  the  venue  had  been  im- 
properly laid.  Mr.  Justice  Harlan,  dissenting,  thought  that  the 
decision  should  have  been  placed  on  the  Abilene  case.  The  ques- 
tion was,  therefore,  not  definitely  determined  by  the  Supreme 
Court. 

§  305.  Same  Subject — Conclusion. — In  the  first  edition  of 
this  book  published  in  1908  it  was  said:  In  view  of  the  language 
used  in  the  Tift  case,  it  can  not  be  said  that  the  Supreme  Court 


"  Central  Stock  Yards  Co.  v. 
Louisville  &  N.  R.  Co.,  192  U. 
S.  568,  570,  48  L.  Ed.  565,  569,  24 
Sup.  Ct.  339,  citing  Interstate 
Stock  Yards  Co.  v.  Indianapolis 
U.   Ry.   Co.,   99   Fed.   472. 

^°  Injunction  granted  Tift  v.  So. 
Ry.  Co.,  123  Fed.  789,  138  Fed. 
753,  affirmed  So.  Ry.  Co.  v.  Tift, 
148  Fed.  1021,  206  U.  S.  428,  51 
L.  Ed.  1124,  27  Sup.  Ct.  709;  the 
affirmance,  however,  was  based 
upon  a  stipulation  in  judicio;  To- 
ledo A.  A.  &  N.  M.  Ry.  Co.  v. 
Penn.  Co.,  54  Fed.  730,  19  L.  R. 
A.  387,  5  I.  C.  R.  545,  22  U.  S. 
App.  561,  citing  Coe  v.  Railroad 
Co.,  3  Fed.  775;  Chicago  &  A. 
Ry.  Co.  V.  New  York,  L.  E.  & 
W.  Ry.-Co.,  24  Fed.  516;  Wol- 
verhampton &  W.  Ry.  Co.  V. 
London  &  N.  W.  Ry.  Co.,  L.  R. 
16,  Eq.  433;  Denver  &  N.  O.  R. 
Co.  V.  Atchison,  T.  &  S.  F.  Ry. 
Co.,  15  Fed.  650;  Scofield  v.  Rail- 
way Co.,  43  Ohio  St.  571,  3  N. 
E.  907;  Kalispel  Lumber  Co.  v. 
Great  X.   Ry.   Co.,   157   Fed.  845; 


Kiser  v.  Central  of  Ga.  Ry.  Co., 
158  Fed.  193;  Northern  Pac.  Ry. 
Co.  V.  Pacific  Coast  Lumber  Mfg. 
Asso..  165  Fed.  1;  Macon  Gro- 
cery Co.  V.  Atlantic  C.  L.  R.  Co., 
163  Fed.  738.  Injunction  denied: 
Potlatch  Lumber  Co.  v.  Spokane 
Falls  &  N.  Ry.  Co.,  157  Fed.  588; 
but  that  decision  was  placed  on 
the  ground  that  the  alleged  rate 
was  already  in  force;  Jewett 
Bros.  &  Jewett  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.,  156  Fed.  .160,  but 
sustaining  the  jurisdictional  right. 
Great  N.  R.  Co.  v.  Kalispel  Lum- 
ber Co.,  165  Fed.  25;  on  the  ground 
that  the  rate  was  effective  before 
an  application  for  injunction  was 
made.  Atlantic  C.  L.  R.  Co.  v. 
Macon  Grocery  Co.,  166  Fed.  206, 
92  C.  C.  A.  114;  reversing  the 
District  Judge.  See  also  citing 
Cases  Long  v.  So.  Ex.  Co.,  201 
Fed.   441. 

'''"  Macon  Grocery  Co.  v.  Atlan- 
tic C.  L.  R.  Co.,  215  U.  S.  501, 
54  L.   Ed.  300,   30   Sup.   Ct.   184. 


416  Enforcement  by  the  Courts  [§  305. 

has  definitely  determined  the  question  as  to  whether  or  no  the 
United  States  courts  may,  without  previous  action  by  the  Com- 
mission, enjoin  an  illegal  rate  already  in  existence,  or  enjoin  the 
putting  in  effect  a  proposed  rate  claimed  to  be  illegal.  The  Su- 
preme Court  does  hold  that  the  Abilene  case  is  not  authority 
against  such  jurisdiction,  and  it  would  seem  that  a  stipulation  of 
counsel  could  not  confer  jurisdiction  on  a  court  unless  the  court 
at  least  had  jurisdiction  over  the  subject-matter.  The  question 
must  be  determined  by  the  Supreme  Court  and  no  more  impor- 
tant question  is  now  pending  before  that  great  tribunal. 

If  a  shipper  may  not  enjoin  an  unjust  advance  pending  a  de- 
termination by  the  Commission  of  its  reasonableness,  his  rem- 
edy is  clearly  inadequate  for  the  injury  he  may  suffer  from  the 
exaction  of  the  unjust  rate. 

Congress  has  been  urged  to  give  the  Commission  power  to  sus- 
pend an  advance.  The  Senate  Committee  on  Interstate  Com- 
merce, Senate  bill  423,  report  Xo.  933.  February  8,  1909,  re- 
ported against  giving  such  power  to  the  Commission.  One  of 
the  arguments  used  in  that  report  is  as  follows : 

"It  is  claimed  that  the  indefinite  suspension  of  the  rate  until 
final  hearing  is  to  deprive  the  carrier,  if  the  rate  advanced  is 
reasonable,  of  his  right  of  property  during  the  period  of,  suspen- 
sion, without  having  given  it  any  opportunity  to  be  heard  prior 
to  the  act  of  suspension.  Due  process  of  law  must  precede,  and 
should  not  follow,  the  suspension.  To  set  aside  the  carriers'  act 
in  fixing  the  rate  pending  the  investigation  required  by  due  proc- 
ess of  law  is  to  deprive  the  carrier,  pro  tanto,  of  its  prop- 
erty right  to  charge  a  reasonable  rate.  The  fact  that  the  statute 
requires  an  investigation  after  the  suspension  of  the  rate  does 
not  avoid  the  constitutional  inhibition,  as  that  provision  can 
only  be  satisfied  when  the  investigation  precedes  any  disturbance 
of  property  rights.  The  carrier  is  entitled  to  the  investigation 
before  it  is  restrained  in  the  exercise  of  its  property  rights ;  the 
theory  of  the  amendment  suggested  is  that  the  shipper  is  entitled 
to  an  investigation  before  the  carrier  can  exercise  its  property 
rights." 

This  argument  would  not  apply  to  injunctions  granted  by 
courts  because  when  such  injunction  is  granted  "the  carrier  re- 
ceives an  investigation  before  it  is  restrained  in  the  exercise  of 
its  property  rights."  The  shipper  also  has  "an  investigation  be- 
fore the  carrier  can  exercise"  the  power  to  deprive  him  of  the 


§  306.]  OF  Act  to  Regulate  Commerce.  417 

right  to  trade  in  such  a  way  that  the  remedy  is  inadequate  and 
the  damage  irreparable. 

§  306.  Same  Subject— Effect  of  Amendment  of  1910.— 

As  to  all  rates,  rules  and  regulations  which  may  be  suspended  by 
the  Commission  under  section  15  of  the  act  of  1910,  it  would 
seem  that  the  remedy  at  law  is  adequate  and  that,  therefore, 
courts  of  equity  would  have  no  jurisdiction  to  enforce  its  extra- 
ordinary equitable  remedies. 

The  power  to  suspend  now  existing  in  the  Commission  applies 
only  to  a  new  individual  or  joint  rate,  fare,  or  charge,  or  any 
new  individual  or  joint  regulation  or  practice  affecting  any  rate, 
fare,  or  charge. 

There  may  be  rules,  regulations  and  practices  which  do  not  af- 
fect any  rate,  fare,  or  charge,  and  as  to  such  the  question  is  the 
same  as  that  presented  prior  to  the  amendment  of  1910.  Judge 
Alayer  in  New  York,  in  an  unreported  case,  enjoined  a  tariff 
which,  changing  the  former  practice,  eliminated  the  right  of  a 
consignee  to  inspect  shipments  of  eggs  prior  to  giving  a  receipt 
therefor.  This  new  tariff'  did  not  aff'ect  a  "rate,  fare  or  charge," 
and  was  not  suspended  by  the  Commission  although  the  reason- 
ableness of  the  tariff  was  subsequently  passed  upon  by  that  tribu- 
nal.^^ 

§  307.  Same  Subject — Venue. — Suits  seeking  to  enjoin  a 
rate  averred  to  be  an  "arbitrary  and  manifold  exaction"  brought 
in  a  federal  court  are  not  dependent  for  jurisdiction  solely  upon 
the  ground  of  diversity  of  citizenship  and  can  not  be  brought  in 
a  federal  district  in  which  none  of  the  defendants  reside. ^- 

'"^  New  York   Mercantile   Ex.  v.  Cliicago,    etc.,    Ry.    Co.,    74    Fed. 

Baltimore   &  O.   R.    Co.,  3G   I.   C.  981;     Toledo,     etc.,     Ry.     Co.     v. 

C.   156.  Renn.   Co.,   54   Fed.   730,   19   L.   R. 

"Macon   Grocery  Co.  v.  Atlan-  A.    387,   5   I.    C.   R.   545,   22  U.    S. 

tic  C.  L.  R.  Co.,  215  U.  S.  501,  54  App.      561;      United      States      v. 

L.   Ed.  300,  30  Sup.   Ct.   184;  Act  Mooney,  116  U.  S.  104,  29  L.  Ed. 

Aug.    13,    1888,    25    Stat.    L.    433,  550,  6  Sup.  Ct.  304;  Atkins  v.  Fi- 

chap.  866,  U.  S.  Comp.  Stat.  1901,  ber   Disintegrating   Co.,   18  Wall. 

508,  4  Fed.  Stat.  Ann.  265.     Prior  85  U.   S.  272,  21   L.   Ed.  841;   Re 

to   the    decision    of   the    Supreme  Louisville    Underwriters,    134    U. 

Court  in  the  Macon  Grocery  case  S.  488,  33  L.  Ed.  991,  10  Sup.  Ct. 

other  courts  had  held  differently:  587;   Re   Hohorst,   150  U.   S.  653, 

United     States    v.     Standard    Oil  37   L.   Ed.   1211,   14   Sup.    Ct.  221; 

Co.,  152  Fed.  290;  Van  Patten  v.  Westinghouse    Air    Brake    Co.    v. 

—14 


418  Enforcement  by  the  Courts  [§  308. 

§  308.  Jurisdiction  of  Suits  to  Set  Aside  Orders  of  the 
Commission. — All  orders  of  the  Commission,  except  orders  for 
the  payment  of  money,  shall  continue  in  force  as  may  be  pro- 
vided by  the  Commission  not  exceeding  two  years,  "unless  the 
same  shall  *  *  *  be  suspended  or  set  aside  by  a  court  of 
competent  jurisdiction."  Section  16  of  the  act  provides  for  the 
"venue  of  suits  *  *  *  to  enjoin,  set  aside,  annul  or  suspend 
any  order  or  requirement  of  the  Commission ;"  and  it  is  further 
provided  that  such  a  suit  "may  be  brought  at  any  time  after  such 
order  is  promulgated." 

In  addition  to  these  provisions,  the  Commerce  Court  Act,  as 
shown  in  a  preceding  section  of  this  chapter,  gave  the  court  ju- 
risdiction over  cases  brought  to  enjoin,  set  aside,  annul,  or  sus- 
pend in  whole  or  in  part  any  order  of  the  Interstate  Commerce 
Commission.  This  jurisdiction  was  transferred  to  the  district 
courts  by  the  act  abolishing  the  Commerce  Court. 

When  the  Commission  has  denied  relief  to  a  complainant  it 
has  been  held  that  no  court  has  jurisdiction  to  set  aside  the  or- 
der.53 

§  309.  Grounds  vtpon  Which  Orders  of  the  Commission 
May  Be  Set  Aside. — Orders  of  the  Interstate  Commerce  Com- 
mission other  than  awards  of  damage  made  within  the  jurisdic- 
tion conferred  on  that  tribunal  are  binding  upon  the  carriers  and 
companies  subject  thereto  and,  since  the  Amendment  of  1906  a 
failure  to  obey  such,  subjects  those  corporations  and  persons  in- 
cluded wdthin  the  provisions  of  the  Acts  to  Regulate  Commerce 
to  penalties. 

Under  the  old  law  the  Commission  had  no  power  to  fix  rates 
or  prescribe  practices  for  the  future  guidance  of  carriers  subject 
to  its  jurisdiction.  What  orders  it  could  make  under  that  law 
had  to  be  enforced  by  suits  in  the  circuit  and  district  courts,  and 
on  the  hearings  of  such  suits  all  reports  of  the  Commission  upon 

Great  N.  Ry.  Co.,  88  Fed.  258,  31  1091,    33   Sup.    Ct.    761;    reversing 

C.    C.   A.    525;    Kalispell    Lumber  same    styled    case,    188    Fed.    221, 

Co.  V.  Great  N.  Ry.  Co.,  157  Fed.  Opinion    Com.    Ct.    No.    9,   p.    67; 

845;    Northern    Pac.    Ry.    Co.    v.  Hooker   v.    Int.    Com.    Com.,    225 

Pacific    Coast    Lumber    ]^.Ianutac-  U.  S.  302.  56  L.  Ed.  1099,  32  Sup. 

turers'    Assn..    16    Fed.    1,    91    C.  Ct.    769;     reversing    same     styled 

C.   A.   39.  case,  ISS  Fed.  242,  Opinion  Com. 

'^  Procter   &   Gamble   v.   United  Ct.  No.  5.  p.  33. 
State,    225    L'.    S.    2S2,    56    L.    Ed. 


§  310.]  OF  Act  to  Regulate  Commerce;.  419 

which  such  suits  were  brought  were  made  "prima  facie  evidence 
of  the  matters  therein  stated."  Under  that  law  the  Commission's 
report  was  not  a  "rule  of  action"  but  a  finding  of  facts.  The 
Hepburn  Amendment  gave  the  Commission  power  to  make  rates, 
to  legislate  for  the  future ;-  it  did  not  take  away  its  administrative 
power  to  make  findings  of  fact  in  certain  cases. 

If  the  order  is  deemed  to  be  unlawful,  suit  to  determine  that 
question  must  be  filed  in  the  proper  district  court  of  the  United 
States.  The  grounds  upon  which  the  courts  may  set  aside  such 
orders  as  determined  by  the  courts  may  be  grouped  into  these : 
(1)  That  the  order  violates  some  provision  of  the  Constitution 
of  the  United  States ;  (2)  That  in  making  the  order  the  Com- 
mission has  relied  on  some  mistake  of  law;  (3)  That  the  order 
is  not  included  within  the  powers  conferred  by  the  statute  upon 
the  Commission  ;  (4)  That  the  order  is,  although  in  form  cor- 
rect, in  substance  so  unreasonable  as  to  violate  the  law;  (5) 
That  the  legal  effect  of  undisputed  testimony  has  been  disre- 
garded by  the  Commission  ;  (6)  That  a  full  hearing  was  not  had 
before  the  order  was  entered. 

These  different  reasons  overlap  and  to  some  extent  are  state- 
ments of  the  same  ground  of  illegality  expressed  in  somewhat 
different  phraseology,  but  the  classification  is  deducible  from 
the  decisions  and  its  use  tends  to  make  clear  the  principles  which 
have  been  applied  by  the  courts. °^ 

§  310.  Same  Subject.  Violations  of  the  Constitution — 
Fourth  Amendment. — The  Fourth  Amendment  of  the  Consti- 
tution of  the  United  States  gviarantees  the  security  of  persons, 
houses,  papers  and  effects  against  unreasonable  searches  and 
seizures."  Should  an  order  of  the  Commission  violate  this  pro- 
vision, such  order  would  be  void. 

"  Int.     Com.    Com.    v.     Illinois  but    in    substance    the    same,    in 

Cent.    R.    Co.,   215   U.    S.    452,    54  Int.  Com.  Com.  v.  Union  Pac.  R. 

L.    Ed.    280,    30   Sup.    Ct.    155;    re-  Co.,  222  U.   S.  541,  56  L.  Ed.  .308, 

versing  the  Circuit  Court  in  Chi-  32     Sup.    Ct.    108.      Florida     East 

cago   &  A.   R.   Co.  V.   Int.    Com.  Coast  R.  Co.  v.  U.  S.,  234  U.  S. 

Com.  and  Illinois  Cent.  R.  Co.  v.  167,   58   L.    Ed.   1267,   34   Sup.   Ct. 

Int.    Com.    Com.,    173    Fed.    930;  Rep.  867;  Int.  Com.  Com.  v.  Lou- 

and    sustaining    the    order    of   the  isville  &  N.  R.  Co.,  227  U.  S.  88, 

Commission  in  Traer  v.   Chicago  57   L.    Ed.   431,   33   Sup.    Ct.   Rep. 

&  A.  R.  Co.,  13  I.   C.   C.   R.  451.  185;  Louisville  &  N.  R.  Co.  v.  U. 

Mr.    Justice    Lamar    stated    these  S.,   238  U.   S.   1,   59   L.   Ed.   — ,   35 

grounds      somewhat      differently.  Sup.    Ct.   696. 


420  EXFORCEMEXT  BY  THE   CoURTS  [§    311. 

The  provision  has  been  urged  in  suits  to  annul  orders  of  the 
Commission. 5^  An  order  of  the  Commission  requiring  an  offi- 
cer of  a  carrier  to  make  reports  under  oath  showing  what  em- 
ployees had  rendered  service  in  excess  of  the  hours  prescribed 
in  the  hours  of  service  law,  was  held  not  to  violate  this  pro  vi- 
sion.^"^  When,  however,  an  order  requires  an  unreasonable 
search  and  seizure  it  is  void.^" 

§  311.  For  a  Violation  of  the  Fifth  Amendment. — The 
Fifth  Amendment  provides  that  "no  person  shall  *  .  *  *  be 
compelled  in  any  criminal  case  to  be  a  witness  against  himself, 
nor  be  deprived  of  life,  liberty  or  property  without  due  process 
of  law,  nor  shall  private  property  be  taken  for  public  use  with- 
out just  compensation." 

The  decisions  of  the  Supreme  Court  relating  to  rates  fixed  by 
state  authority,  the  exercise  of  which  authority  was  alleged  to 
violate  the  Fourteenth  Amendment  by  fixing  a  confiscatory  rate, 
are  valuable  in  determining  the  same  question  arising  under  the 
Fifth  Amendment  which  limits  the  powers  of  the  federal  govern- 
ment as  the  fourteenth  limits  the  powers  of  the  state  govern- 
ments.^^ In  an  opinion  of  the  Supreme  Court,  ]\lr.  Chief  Justice 
White  said:  "Beyond  controversy  in  determining  whether  an 
order  of  the  Commission  shall  be  suspended  or  set  aside  we  must 
consider  all  relevant  questions  of  constitutional  power."^^ 

"  Goodrich   Transit    Co.   v.    Int.  ''  Baltimore  &  O.  R.  Co.  v.  Int. 

Com.    Com.,    190   Fed.   943,   Opin-  Com.   Com.,  221  U.   S.   612,   55   L. 

ions    Com.    Ct.    Nos.    21    to    24,    p.  Ed.    878,    31    Sup.    Ct.    621. 

95.     While   the   Commerce   Court  "  Harriman  v.  Int.  Com.  Com., 

did  not  place  its   decision   on  the  211  U.  S.  407,  419,  420,  53  L.  Ed. 

ground  .  of    the    Fourth     Amend-  253,    29 '  Sup.    Ct.    115.      See    also 

ment,    it    set    aside    the    order    of  Weeks   v.   United    States,   232   U. 

the  Commission  on  other  grounds,  S.  383,  58  L.  Ed.  652,  34  Sup.  Ct. 

and  was  reversed  by  the  Supreme  341;  Int.  Com.  Com.  v.  Brimson, 

Court,   Int.    Com.   Com.  v.    Good-  154  U.  S.  447,  38  L.   Ed.  1047,   14 

rich    Transit    Co.,   224   U.    S.    194,  Sup.    Ct.    1125;    Int.    Com.    Com. 

56    L.    Ed.    729,    30    Sup.    Ct.    436.  v.   Baird,   194  U.   S.   25.  48   L.   Ed. 

Holding     that     the     Commission  860,  867,  24   Sup.   Ct.   563;  United 

had  no  jurisdiction  to  require  an-  States   v.   Skinner,   218    Fed.   870; 

swers  to  the  questions  asked,  see  and  see  also  cases  cited  note  55, 

United  States  v.  L.  &  N.  R.  Co.,  stif>ra. 

236    U.    S.    318,    59   L.    Ed.   — ,    35  ="  See  ante,  Sees.  47,  48.  49,  and 

Sup.    Ct.   363;    Ellis   v.    Int.    Com.  notes  thereto. 

Com.,    237    U.    S.    434,    59    L.    Ed.  «' Int.  Com.  Com.  v.   Illinois  C. 

— ,   35   Sup.   Ct.   645.  R.    Co.,   215   U.   S.   452.   54   L.    Ed. 


§311.]  OF  Act  to  Regulate  Commerce.  421 

A  corporation  is  not  entitled  to  the  constitutional  exemption 
from  producing  records,  nor  can  an  officer  thereof  refuse  to  pro- 
duce the  corporate  records.  "An  officer  of  a  corporation  is  pro- 
tected by  the  self  incrimination  provision  of  the  Fifth  Amend- 
ment against  the  compulsory  production  of  his  private  books 
and  papers,  but  this  privilege  does  not  extend  to  books  of  the 
corporation  in  his  possession."*''^ 

"The  carrier  can  not  complain  of  a  violation  of  its  constitu- 
tional rights,  if  not  to  favor  some  person  or  class,  but  for  the 
general  welfare,  it  is  compelled  to  make  a  rate  for  some  particu- 
lar service  which,  though  in  excess  of  the  out  of  pocket  expense, 
would  nevertheless  be  confiscatory  if  it  were  applied  to  all  its 
freight,  that  is,  the  carrier  has  no  constitutional  right  to  a  rate 
for  each  distinct  kind  of  service  which  will  equal  its  proportion- 
ate share  of  the  entire  operating  expenses."'^ ^ 

If  the  foregoing  language  means  that  it  is  legal  and  proper  to 
classify  commodities  so  that  those  of  unequal  value  may  yield 
varying  rates  of  return  on  the  property  investment,  the  court 
was  correct.  But  it  violates  the  constitutional  rights  of  a  carrier 
to  require  it  to  transport  property  at  a  rate  which  yields  no  sub- 


280,    30    Sup.    Ct.    155;    Constitu-  North    Carolina    Corp.    Com.,    206 

tional  question  argued  but   Com-  U.    S.    1,    51    L.    Ed.    933,   27    Sup. 

mission  sustained  as  no  violation  Ct.  585,  11  Ann.  Cas.  398.     In  the 

shown.     Int.  Com.  Com.  v.  Union  final    Lemon    Rate    Case,    Atchi- 

Pac.    R.    Co.,    222    U.    S.    541,    56  son,   T.    &   S.   F.   Ry.    Co.  v.    Int. 

L.   Ed.    308,   32   Sup.    Ct.   108.  Com.    Com.,    190   Fed.   591,   Opin- 

^  Wilson   V.   United   States,  221  ion    Com.    Ct.    No.    7,    p.    83,    the 

U.   S.  361,  55  L.  Ed.  771.  31  Sup.  order  of  the  Commission  was  set 

Ct.     1538;     cited    and    applied    in  aside    because    as    stated    by    the 

Baltimore    &    O.    R.    Co.    v.    Int.  Court  the  Commission  gave  force 

Com.   Com.,  221   U.   S.   612,   55   L.  to   the   tariff  law.     The   Commis- 

Ed.  878,   31   Sup.   Ct.  621.  sion,     on    a    supplementary    pro- 

"  Lemon  Rates  Case,  Atchison,  ceeding,    disclaimed    such    an    in- 

T.  &  S.  Ry.  Co.  V.  United  States,  tention  and  entered  an  order  fix- 

203    Fed.    56,    Opinion    Com.    Ct.  ing  rates  as  in  the  original  order. 

No.    61,    p.    537,    citing,    Minneap-  and    this    second    order   was    sus- 

olis    &    St.    L.    R.    Co.   V.   Minne-  tained   by   the    Commerce    Court, 

sota,    186    U.    S.    257,    46    L.    Ed.  For    Commission   cases,   see   Arl- 

1151,   22    Sup.    Ct.   900;    St.   Louis  ington    Heights    Fruit    Exchange 

&  S.  F.  R.  Co.  V.  Gill,  156  U.  S.  V.  Southern  Pac.   Co.,  19  I.  C.  C. 

649,    39    L.    Ed.    567,    15    Sup.    Ct.  148,    and    same    styled    case   22    I. 

484;    Atlantic     C.    L.    R.    Co.    v.  C.   C.   149. 


422  Enforcement  by  the  Courts  [§  312. 

stantial  amount  above  the  actual  operating  expense  of  the  haul.^- 
§  312.  For  Mistake  of  Law. — While  the  law  in  force  prior 
to  the  enactment  of  the  Hepburn  Amendment  made  the  order  of 
the  Commission  only  prima  facie  lawful,  even  under  that  law 
force  was  given  the  findings  of  the  Commission  upon  disputed 
questions  of  fact.  The  present  law  gives  the  courts  no  jurisdic- 
tion over  questions  involving  the  credibility  of  witnesses  or  the 
weight  of  evidence. 

In  the  Yellow  Pine  case  ^^  the  Supreme  Court  discussed  for- 
mer cases  and  in  summing  up  the  decisions  therein  said:  "In  all 
these  cases,  therefore,  there  was  a  single,  distinct  and  dominant 
proposition  of  law  which  the  Commission  had  rejected  and  the 
exact  influence  of  which  on  its  decisions  could  not  be  estimated," 
and  even  under  the  then  statute  it  was  held  that  the  orders  of 
the  Commission  would  not  be  disturbed  because  the  Commis- 
sion did  not  adopt  certain  presumptions  of  mixed  law^  and  fact 
put  forward  as  factors  in  determining  the  reasonableness  of  a 
rate,  and  the  court  there  stated  as  a  suggestive  applicable  prin- 
ciple to  the  conclusions  of  the  Commission  that  "such  conclusions 
of  fact  were  to  be  arrived  at,  looking  at  the  matter  broadly  and 
applying  common  sense  to  the  facts  that  are  proved,"  and,  said 
the  court :  "This  court  has  ascribed  to  them  (the  findings  and 
conclusions  of  the  Commission)  the  strength  due  to  judgments 
of  a  tribunal  appointed  by  law  and  informed  by  experience." 

The  Commission's  orders  w-ere  set  aside,  because  it  held  that 
under  the  law  a  carrier  was  not  entitled  to  a  profit  for  a  service 
in  stopping  hay  for  purposes  of  treatment  or  reconsignment ;  ^"* 

''Northern    Pac.    Co.    v.    North  Ry.    Co.,    168    U.    S.    144,    42    L. 

Dakota,  236  U.   S.  585,  59   L.   Ed.  Ed.  414,  IS  Sup.  Ct.  45;  Louisville 

— ,    35    Sup.    Ct.    429;    Norfolk    &  &  N.   R.   Co.  v.   Behlmer,   175  U. 

W.   Ry.   Co.  V.    Conley,  236  U.   S.  S.  648,  44  L.  Ed.  309,  20  Sup.  Ct. 

605,  59  L.  Ed.  — ,  35  Sup.  Ct.  437.  209;    East  Tenn.,   Va.    &   Ga.   Ry. 

^  Illinois  C.  R.  Co.  v.  Int.  Com.  Co.    v.    Int.    Com.    Com.,    181    U. 

Com.,    206    U.    S.    441,    51    L.    Ed.  S.  127,  45  L.  Ed.  719,  21  Sup.  Ct. 

1128,  27   Sup.   Ct.   700;   discussing  516.     See  also  Cincinnati,  etc.,  R. 

Texas     &    Pac.    Ry.    Co.   v.    Int.  Co.  v.  Int.  Com.  Com.,  206  U.  S. 

Com.    Com.,    162   U.    S.   197,   40    L.  142,    51    L.    Ed.    995,    27    Sup.    Ct. 

Ed.   940,   16   Sup.   Ct.   666;    Cincin-  648. 

nati,   N.   O.   &  T.   P.   Ry.   Co.   v.  "  So.  R.  Co.  v.  St.  Louis  Hay  & 

Int.    Com.    Com.,    162    U.    S.    184,  Grain    Co.,    214    U.    S.   297,   53    L. 

40    L.    Ed.    935,    16    Sup.    Ct.    700;  Ed.  1004,  29  Sup.   Ct.  678. 
Int.    Com.    Com.    v.    Alabama    M. 


§  313.]  OF  Act  to  Regulate  Commerce.  423 

because  it  struck  down  a  reasonable  terminal  charge  on  the  er- 
roneous ground  that,  taken  with  a  prior  unreasonable  charge,  the 
total  charge  was  too  high ;  ^^  because  it  required  a  switch  con- 
nection when  no  one  authorized  by  the  statute  filed  application 
therefor ;  ^^  because,  as  was  held  by  the  court,  it  determined  the 
lawfulness  of  a  rate  from  an  application  of  the  law  of  estop- 
pel ;  ^'^  because  it  held  that  a  payment  of  an  elevator  allowance 
was  illegal ;  '^^  because  an  allowance  for  terminal  facilities  was 
held  illegal ;  *^^  because  there  was  no  evidence.'^" 

Where  the  question  involved  in  a  suit  to  set  aside  the  order  of 
the  Commission  is  one  of  fact,  the  principle  stated  by  the  Su- 
preme Court  is,  "The  outlook  of  the  Commission  and  its  powers 
must  be  greater  than  the  interest  of  the  railroads,  or  of  that 
which  may  affect  those  interests.  It  must  be  as  comprehensive 
as  the  interest  of  the  whole  country.  If  the  problems  which  are 
presented  to  it,  therefore,  are  complex  and  difficult,  the  means  of 
solving  them  are  as  great  and  adequate  as  can  be  provided.""^ 

§  313.  Lack  of  Jurisdiction. — The  powers  of  the  Interstate 
Commerce  Commission  find  their  limitation  as  well  as  their 
grant  in  the  statute,  and  should  the  Commission  attempt  to 
exercise  any  power  not  contained  in  the  grant,  its  action  would 

"  Int.    Com.    Com.    v.    Stickney,  Bureau     Merchants     Ex.     of     St. 

215   U.    S.    98,   54    L.    Ed.    112,    30  Louis  v.  Chicago,  B.  &  Q.  R.  Co., 

Sup.    Ct.    66.  14   I.    C.    C.   317,   510,   551. 

"*  Int.    Com.   Com.  v.  Delaware,  "'^  Sugar   Literage    Case,   United 

L.  &  W.  Ry.   Co.,  216  U.  S.  531,  States  v.  Baltimore  &  O.  R.  Co., 

54   L.   Ed.   605,   30   Sup.    Ct.   415.  231    U.    S.   274,    58    L.    Ed.   218,    34 

"  Southern     Pac.     Co.     v.     Int.  Sup.    Ct.    75,    affirming    Baltimore 

Com.   Com.,  219  U.  S.  433,  55  L.  &  O.  R.  Co.  v.  United  States,  200 

Ed.    283,    31    Sup.    Ct.    288.      See  Fed.   779;   Opinion   Com.    Ct.   No. 

also  Lemon  Rate  Case,  Atchison,  38,   p.   499. 

T.  &  S.  F.  Ry.  Co.  V.   Int.   Com.  ™  Florida  E.  C.  R.  Co.  v.  U.  S., 

Com.,      190     Fed.     591,      Opinion  234  U.  S.  167,  58  L.  Ed.   1267,  34 

Com.    Ct.   No.   20,   p.   83,   and   203  Sup.   Ct.   867. 

Fed.    56,    Opinion    Com.    Ct.    No.  "  Int    Com.    Com.    v.    Chicago, 

61,   p.   537.  R.    I.    &   P.    R.    Co.,   218   U.   S.   88, 

°*  Int.      Com.     Com.    v.    Diffen-  54    L.    Ed.    946,    30    Sup.    Ct.    651. 

baugh,  222  U.  S.  42,  56  L.  Ed.  83,  For  a  full  discussion  of  the  right 

32  Sup.  Ct.  22.     The  Commission  of  the  Commission  to  exercise  its 

had  put  its  finding  on  the  fact  that  judgment    on    questions    of    fact, 

unjust  discrimination  existed,  but  see    Illinois    Cent.    R.    Co.   v.   Int. 

evidence  was  undisputed  and   the  Com.   Com.,  206  U.   S.  441,   51   L. 

conclusion     from     the     admitted  Ed.  1128,  27   Sup.   Ct.  700. 
facts     was    one    of    law.     Traffic 


424 


Enforcement  by  the  Courts 


:§  313. 


be  void.  The  old  law  gave  power  to  the  Commission  to  estab- 
lish through  routes  and  joint  rates  applicable  thereto  when  no 
reasonable  through  route  existed.  The  non-existence  of  a  rea- 
sonable through  route  was  a  necessary  prerequisite  to  the  exer- 
cise of  the  power  to  prescribe  through  routes,  and  whether  or  not 
this  jurisdictional  prerequisite  existed  was  a  question  w'hich  the 
courts  could  determine,  and  when  that  question  was  found 
against  the  jurisdiction,  the  order  of  the  Commission  was  set 
aside."^-  Under  the  present  law  the  power  of  the  Commission 
is  broader  and  discretion  is  given  to  establish  through  routes  "as 
the  circumstances  and  conditions  developed  in  each  inquiry  may 
seem  to  require."  "^^ 

That  the  Commission  has  power  to  regulate  transportation 
over  the  terminals  at  Galveston,  when  the  transportation  is  with- 
in the  Act  to  Regulate  Commerce,  has  been  determined.'^ 

Orders  held  valid  requiring  the  same  rates  on  fuel  coal  as  on 
commercial  coal;'°  regulating  the  distribution  of  cars ; '^  reduc- 
ing rates  ;  '•''  regulating  terminal  charges  ;  "^  carload  rating  for 
bulked  shipments;"^  reports  and  accounting ;  ^*^  precooling 
charges. ^^ 


'"  Int.  Com.  Com.  v.  Northern 
Pac.  Ry.  Co.,  216'  U.  S.  538,  54  L. 
Ed.  608,  30  Sup.  Ct.  417;  and  so 
where  no  jurisdiction  existed 
over  a  street  railroad,  Omaha 
and  C.  B.  Street  Ry.  Co.  v.  Int. 
Com.  Com.,  230  U.  S.  324,  57  L. 
Ed.   1501,   33   Sup.   Ct.   890. 

"  Crane  Iron  Works  v.  United 
States,  Opinion  Com.  Ct..  No.  55, 
p.  453,  209  Fed.  23S;  Truckers 
Transfer  Co.  v.  Charleston  &  W. 
C.   Ry.    Co.,   27    I.    C.    C.   275,    277. 

"  Southern  Pac.  Terminal  Co. 
V.  Int.  Com.  Com.,  219  U.  S.  498, 
55   U   Ed.   310,  31   Sup.   Ct.   279. 

"  Int.  Com.  Com.  v.  Baltimore 
&  O.  R.  Co.,  225  U.  S.  326,  56  L. 
Ed.    1107,   32   Sup.    Ct.   742. 

"  Int.  Com.  Com.  v.  Illinois  C. 
R.  Co.,  215  U.  S.  452,  54  L.  Ed. 
280,  30  Sup.  Ct.  153;  Int.  Com. 
Com.  V.  Chicago  &  A.  R.  Co., 
215    U.    S.    479. 


"  Int.  Com.  Com.  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  218  U.  S.  88,  and 
Int.  Com.  Com.  v.  Union  Pac.  R. 
Co.,  222  U.  S.  541,  56  L.  Ed.  308, 
32  Sup.  Ct.  108;  Int.  Com.  Com. 
V.  Louisville  &  X.  R.  Co.,  227  U. 
S.  88.  57  L.  Ed.  431,  33  Sup.  Ct. 
1S5. 

"  Southern  Pac.  Terminal  Co. 
V.  Int.  Com.  Com.,  219  U.  S.  498, 
55   U   Ed.   310,   31   Sup.   Ct.  279. 

"  Int.  Com.  Com.  v.  Delaware, 
L.  &  W.  Ry.  Co.,  220  U.  S.  235, 
55   U   Ed.  448,  31   Sup.    Ct.   392. 

*°  Int.  Com.  Com.  v.  Goodrich 
Transit  Co.,  224  U.  S.  194,  56  L. 
Ed.  729,  32  Sup.  Ct.  436;  Kansas 
City  So.  Ry.  Co.  v.  United  States, 
231  U.  S.  423.  58  L.  Ed.  296,  34 
Sup.    Ct.    125. 

'^\tchison,  T.  &  S.  F.  Ry.  Co. 
V.  United  States,  232  U.  S.  199, 
58  L.  Ed.  568.  34  Sup.   Ct.  291. 


§  314.]  OF  Act  to  Regulate  Commerce.  425 

§  314.  The  Substance  and  Not  the  Form  of  the  Finding- 
Determines. — Prescribing  rates,  rules  and  regulations  for  the 
future  is  a  legislative  act.^^  Congress  has  prescribed  the  general 
rules  of  action  under  which  the  Commission  shall  proceed,  leav- 
ing to  the  Commission  the  application  of  those  rules  to  particular 
situations  and  circumstances.^^ 

That  the  power  delegated  to  the  Commission  may  be  exercised 
within  the  form  delegated  does  not  deprive  the  courts  of  juris- 
diction to  review  its  orders  if  such  orders  be  in  substance  a  vio- 
lation of  the  delegated  authority  for  "the  substance  and  not  the 
shadow  determines  the  validity  of  the  exercise  of  the  power. "^* 

In  the  language  of  a  Circuit  Judge,  "The  power  is  vested  in 
and  the  duty  is  imposed  upon  the  circuit  courts  (now  the  district 
courts)  to  relieve  from  orders  *  *  *  which,  though  in  form 
within  its  (the  Commission's)  delegated  power,  evidence  so  un- 
reasonable an  exercise  of  it  that  they  are  in  substance  beyond 
it."85 

§  315.  Disregard  of  the  Legal  Effect  of  Undisputed  Tes- 
timony.— Where  there  are  disputed  questions  of  fact,  as  has 
been  stated  many  times,  the  jurisdiction  of  the  Commission  to 
determine  what  is  the  truth  is  exclusive  and  its  conclusions  are 
not  subject  to  review  by  the  courts.^*'  Carriers,  however,  under 
the  law  at  present  have  the  primary  right  to  make  rates.  If, 
after  hearing,  such  rates  are  shown  to  be  unreasonable  or  other- 

"'^  Hooker    v.    Int.    Com.    Com.,  '*  Int.   Com.   Com.  v.  Illinois  C. 

188    Fed.   242,   and   cases   cited   at  R.   Co.,   215   U.   S.   452,   54   L.   Ed. 

p.   252,   Opinion   Com.   Ct.   No.  5,  280,  30  Sup.  Ct.  153,  citing  Postal 

p.    33;    reversed    by    Sup.    Ct.    on  Cable-Tel.   Co.  z:  Adams,   155  U. 

the    ground    that    when    relief    is  S.  688,  698,  39  L.  Ed.  311,  15  Sup. 

denied  a  shipper  by  the  Commis-  Ct.  360.     See  also  Southern  Pac. 

sion  the  courts  have  no  jurisdic-  Co.  v.  Int.  Com.  Com.,  219  U.  S. 

tion.      Hooker   v.    Knapp,    225    U.  433,    55    L.    Ed.    283,    31    Sup.    Ct. 

S.  302,  56  L.  Ed.  1099,  32  Sup.  Ct.  288. 

769.      See    also    Baer    Bros.    Mer.  '"  Peavy  v.   Union   Pac.   R.   Co., 

Co.  V.  D.  &  L.  G.  R.  Co.,  233  U.  176  Fed.  409,  418;  on  appeal  modi- 

S.    479,    58    L.    Ed.    1055,    34    Sup.  fied    on    other    points:    Int.    Com. 

Ct.  641.  Com.    V.    Diffenbaugh,    222    U.    S. 

'^  Int.    Com.    Com.    v.    Goodrich  42,   56   L.   Ed.   83,   32   Sup.   Ct.  22. 

Transit  Co.,  224  U.  S.  194,  210,  56  '"  Int.   Com.   Com.  v.  Delaware, 

L.   Ed.   729,   735,   32   Sup.    Ct.   436;  L.    &  W.   Ry.   Co.,  220   U.   S.   235, 

Kansas  City  So.  R.  Co.  v.  United  55  L.  Ed.  448,  31  Sup.  Ct.  392. 
States,   231   U.    S.   423,   58   L.    Ed. 
296,    34    Sup.    Ct.    125,    131. 


426  Enforcement  by  the  Courts  [§  316. 

wise  unlawful,  the  Commission  may  set  them  aside  and  require 
the  substitution  of  just  and  lawful  rates.  If  there  is  no  evidence 
of  the  unlawfulness  of  an  existing  rate,  the  Commission  has  no 
power  to  prescribe  another  and  different  rate.  When  there  is 
no  disputed  question  of  fact,  the  legal  effect  of  evidence  is  a  ques- 
tion of  law  over  which  the  courts  have  jurisdiction, s'''  and  a  find- 
ing of  the  Commission  without  evidence  or  contrary  to  the  legal 
eft'ect  of  undisputed  evidence  is  void.^^  In  discussing  the  gen- 
eral question  Mr.  Justice  Lamar,  delivering  the  opinion  of  the 
Supreme  Court,  said:  "The  reasonableness  of  rates  can  not  be 
proved  by  categorical  answers,"  and  after  stating  facts  consid- 
ered by  the  Commission,  he  continued,  "with  that  sort  of  evi- 
dence before  them,  rate  experts  of  acknowledged  ability  and  fair- 
ness, and  each  independently  of  the  other,  may  not  have  reached 
identically  the  same  conclusion.  We  do  not  know  whether  the 
results  would  have  been  approximately  the  same.  For  there  is 
no  possibility  of  solving  the  question  as  though  it  were  a  mathe- 
matical problem  to  which  there  could  only  be  one  correct  answer. 
Still  there  was  in  this  mass  of  facts  that,  out  of  which  experts 
could  have  named  a  rate.  The  law  makes  the  Commission's  find- 
ings on  such  facts  conclusive. "^^ 

In  the  Precooling  c2'^e,^^  Mr.  Justice  Lamar,  after  stating  the 
power  of  the  Commission,  said :  "All  these  matters  are  com- 
mitted to  the  decision  of  the  administrative  body,  which  in  each 
instance  is  required  to  fix  reasonable  rates,  and  establish  reason- 
able practices.  The  courts  have  not  been  vested  with  any  such 
power.  They  can  not  make  rates.  They  can  not  interfere  with 
rates  fixed  or  practices  established  by  the  Commission  unless  it 
is  made  plainly  to  appear  that  those  ordered  are  void." 

§  316.  Lack  of  Full  Hearing. — The  language  of  the  statute 
requires  a  full  hearing.  It  was  contended  on  behalf  of  the  Com- 
mission that  if  after  a  hearing  the  Commission  was  of  the  opin- 

"Tnt.   Com.   Com.  v.   Louisville  ""Atchison,  T.  &  S.  Ry.   Co.  v. 

&  N.  R.   Co.,  227  U.  S.  88,  57   L.  United   States,   232  U.   S.   199,   58 

Ed.  431,  33  Sup.   Ct.   185.  L.  Ed.  568,  34  Sup.  Ct.  291,  affirm- 

^  Atchison,  T.  &  S.   Ry.  Co.  v.  ing    same    styled    case,    204    Fed. 

Int.    Com.    Com.   and   the  United  647,  Opinion  Com.  Ct.  No.  41,  p. 

States,     188     Fed.     229,     Opinion  627,  and  citing  Int.  Com.  Com.  v. 

Com.   Ct.   No.   2,   P.   3.  Union  Pac.  R.  Co.,  222  U.  S.  547 

^  Int.  Com.  Com.  v.  Union  Pac.  56  L.   Ed.  311,  32   Sup.   Ct.   108. 
R.    Co.,   222   U.    S.   541,    549.    56    L. 
Ed.   308,   32  Sup.   Ct.   108. 


§  317.]  OF  Act  to  Regulate  Commerce.  427 

ion  that  a  particular  rate  was  unreasonable,  its  order  based  on 
such  opinion  was  conclusive.  Answering  this  contention,  Mr- 
Justice  Lamar,  delivering  the  opinion  of  the  Supreme  Court 
said : 

"But  the  statute  gave  the  right  to  a  full  hearing,  and  that  con- 
ferred the  privilege  of  introducing  testimony,  and  at  the  same 
time  imposed  the  duty  of  deciding  in  accordance  with  the  facts 
proved.  A  finding  without  evidence  is  arbitrary  and  baseless. 
And  if  the  Government's  contention  is  correct,  it  would  mean 
that  the  Commission  had  a  power  possessed  by  no  other  officer, 
administrative  body,  or  tribunal  under  our  Government.  It 
would  mean  that  where  rights  depended  upon  facts,  the  Commis- 
sion could  disregard  all  rules  of  evidence,  and  capriciously  make 
findings  by  administrative  fiat.  Such  authority,  however  bene- 
ficiently  exercised  in  one  case,  could  be  injuriously  exerted  in 
another;  is  inconsistent  with  rational  justice,  and  comes  under 
the  Constitution's  condemnation  of  all  arbitrary  exercise  of 
power. 

"In  the  comparatively  few  cases  in  which  such  questions  have 
arisen  it  has  been  distinctly  recognized  that  administrative  or- 
ders, quasi-judicial  in  character,  are  void  if  a  hearing  was  denied; 
if  that  granted  was  inadequate  or  manifestly  unfair;  if  the  find- 
ing was  contrary  to  the  'indisputable  character  of  the  evidence 
*  *  *,  or  if  the  facts  do  not  as  a  matter  of  law  support  the 
order  made.'  "^^ 

§  317.  Awards  of  Damages. — Section  8  of  the  act  gives  the 
person  injured  the  right  to  recover  "the  full  amount  of  damages 
sustained,"  and  the  Commission  having  made  an  award  of  dam- 
ages, section  16  provides : 

"If  a  carrier  does  not  comply  with  an  order  for  the  payment  of 

"'  Int.    Com.    Com.  v.   Louisville  Zakonite  v.  Wolf,  226  U.   S.   272 

&  N.   R.   Co.,  227  U.   S.  88,  57  L.  56    L.    Ed.    218,    33    Sup.    Ct.    31 

Ed.    431,    33    Sup.    Ct.    185,    citing  United   States  v.   B.   &  O.   S.  W 

Int.  Com.  Com.  v.  Union  Pac.  R.  R.  R.,  226  U.  S.  14,  57  L.  Ed.  104 

Co.,  222  U.  S.  541,  56  L.   Ed.  311,  33  Sup.  Ct.  5,  9;  Atlantic  C.  L.  R 

32  Sup.  Ct.  108;  Tang  Tun  v.  Ed-  Co.  v.  North  Carolina  Corp.  Com. 

sell,  223  U.  S.  673,  681,  56  L-   Ed.  206    U.    S.    1,    20,    51    L.    Ed.    933, 

606,    32   Sup.    Ct.    359;    Chin    Yoh  27    Sup.    Ct.    585;    Wisconsin,    M. 

V.  U.  S.,  208  U.  S.  8,  13,  52  L.  Ed.  &    P.    R.    Co.    v.    Jacobson,    179 

369,   28    Sup.    Ct.   201;    Low   Wah  U.   S.  287,  301,  45   L.   Ed.   194,   21 

Suey  V.  Backus,  225  U.  S.  460,  468,  Sup.   Ct.   115. 
56    L.    Ed.    1165,   32   Sup.    Ct.   734; 


428  Enforcsment  by  the  Courts  [§  317. 

money  within  the  time  Hmit  in  such  order,  the  complainant,  or 
any  person  for  whose  benefit  such  order  was  made,  may  file  in 
the  circuit  court  of  the  United  States  for  the  district  in  which 
he  resides  or  in  which  is  located  the  principal  operating  office  of 
the  carrier,  or  through  which  the  road  of  the  carrier  runs,  or 
in  any  state  court  of  general  jurisdiction  having  jurisdiction  of 
the  parties,  a  petition  setting  forth  briefly  the  causes  for  which  he 
claims  damages,  and  the  order  of  the  Commission  in  the  prem- 
ises. Such  suit  in  the  circuit  court  of  the  United  States  shall 
proceed  in  all  respects  like  other  civil  suits  for  damages,  except 
that  on  the  trial  of  such  suit  the  findings  and  order  of  the  Com- 
mission shall  be  prima  facie  evidence  of  the  facts  therein  stated. 
*  *  *  If  the  petitioner  shall  finally  prevail  he  shall  be  allowed 
a  reasonable  attorney's  fee,  to  be  taxed  and  collected  as  a  part 
of  the  costs  of  the  suit." 

Orders  making  an  award  of  damages  must  be  lawful,  and  such 
orders  are  not  binding  if  the  Commission  has  violated  the  Con- 
stitution, exceeded  its  jurisdiction  or  acted  without  evidence  or 
contrary  to  the  undisputed  evidence.^-  The  circuit  court  of  ap- 
peals held  that  an  order  of  the  Commission  awarding  damages 
which  failed  to  prescribe  a  rate  for  the  future  was  void.^^  This 
decision  was  reversed  by  the  Supreme  Court  which  held  that  the 
questions  could  be  considered  separately  or  together,  for,  said 
the  court,  "Awarding  reparation  for  the  past  and  fixing  rates 
for  the  future  involve  the  determination  of  matters  essentially 
different.  One  is  in  its  nature  private  and  the  other  public.  One 
is  made  by  the  Commission  in  its  quasi- judicial  capacity  to  meas- 
ure past  injuries  sustained  by  a  private  shipper;  the  other  in  its 
quasi-legislative  capacity,  to  prevent  future  injury  to  the  pub- 
lic."9^ 

The  award  is  not  a  judgment  but  is  prima  facie  evidence  of 
the  facts  therein  stated,  and  the  finding  that  a  rate  exacted  is  un- 

"■  Western  N.  Y.  &  P.  R.  Co.  v.  **  Baer   Bros.   Mercantile  Co.  v. 

Penn   Refining  Co.,   137   Fed.  343,  Denver   &    R.    G.    R.    Co.,   233   U. 

70    C.    C.    A.    23,    affirmed,    Penn  S.    479,    58    L.    Ed.    1055,    34    Sup. 

Refining  Co.  v.  Western  N.  Y.  &  Ct.    641.    citing  Tex.    &   Pac.    R3^ 

P.   Ry.   Co.,  208  U.   S.  208,   52   L.  Co.    v.    Abilene    Cotton    Oil    Co., 

Ed.  456,  28  Sup.  Ct.  268.  204   U.    S.   426,   51    L.    Ed.   553,   27 

"'Denver    &    R.    G.    R.    Co.    v.  Sup.    Ct.  350;   Robinson  v.   Balti- 

Baer    Bros.    Mer.    Co.,    1S7    Fed.  more  &  O.  R.  Co.,  222  U.  S.  506, 

485,   109   C.   C.  A.   337.  56  L.   Ed.  288,  32  Sup.  Ct.  114. 


§  317.] 


OF  Act  to  Regulate  Commerce. 


429 


reasonable  and  that  the  plaintiff  has  suffered  damage,  does  not 
preclude  the  defendant  from  showing  in  court  facts  constituting 
a  defense.^^  Interest  may  be  allowed  by  the  Commission  in  fix- 
ing the  amount  of  an  award,  and  the  courts  in  suits  thereon  may 
allow  attorneys  fees  for  services  before  the  courts.^^ 

The  Commission  having  once  acted,  declaring  a  particular  rate 
unlawful,  it  was  held  unnecessary  for  an  injured  shipper 
again  to  present  the  same  question  to  the  Commission  before 
electing  to  sue  directly  in  a  federal  court  to  recover  his  dam- 
ages.^" 

The  reasonableness  of  a  rate  is  not  involved  in  a  suit  on  an 
award  of  damages  made  by  the  Commission  and  based  upon  a 
charge  in  excess  of  a  rate  legally  filed  with  the  Commission,  and 


"^  Meeker  v.  Lehigh  Valley  R. 
Co.,  236  U.  S.  412,  59  L.  Ed.  — , 
35  Sup.  Ct.  328;  reversing  Circuit 
Court  of  Appeals,  Lehigh  Valley 
R.  Co.  V.  Meeker,  211  Fed.  785; 
Meeker  v.  Lehigh  Valley  R.  Co., 
236  U.  S.  434,  59  L.  Ed.  — ,  35 
Sup.  Ct.  328;  Mills  v.  Lehigh  Val- 
ley R.  Co.,  238  U.  S.  473,  59  L. 
Ed.  — ,  35  Sup.  Ct.  888,  revers- 
ing Circuit  Court  of  Appeals  in 
Lehigh  Valley  R.  Co.  v.  Clark, 
207  Fed.  717,  125  C.  C.  A.  235. 
See  related  questions  in  Penn.  R. 
Co.  V.  International  Coal  Co.,  230 
U.  S.  184,  57  L.  Ed.  1446,  33  Sup. 
Ct.  893;  Penn.  R.  Co.  v.  Clark 
Bros.  Coal  Mining  Co.,  238  U.  S. 
456,  59  L.  Ed.  — ,  35  Sup.  Ct.  896; 
Penn.  R.  Co.  v.  Clark  Bros.  Coal 
Mining  Co.,  241  Pa.  515,  88  Atl. 
754. 

°'  Cases  Note  95,  supra,  and 
Denver  &  R.  G.  R.  Co.  v.  Baer 
Bros.  Mer.  Co.,  209  Fed.  577,  126 
C.  C.  A.  399.  The  history  of  this 
case  is  interesting.  Baer  Bros. 
Mercantile  Co.  brought  suit  in 
the  United  States  Court,  but 
upon  the  decision  of  the  Supreme 
Court  in  Texas  &  Pacific  Ry.  Co. 
V.  Abilene  Cotton  Oil  Co.,  204  U. 


S.  426,  51  L.  Ed.  553,  27  Sup.  Ct. 
350,  the  suit  was  voluntarily  dis- 
missed. Complaint  was  then  filed 
with  the  Commission,  Baer  Bros. 
Mercantile  Co.  v.  Mo.  Pac.  Ry. 
Co.,  13  L  C.  C.  329,  upon  which 
an  order  awarding  damages  was 
entered.  Upon  this  order  the 
District  Court  entered  a  judg- 
ment and  allowed  attorney's  fees. 
This  decision  and  decree  were  re- 
versed by  the  Circuit  Court  of 
Appeals,  Denver  &  R.  G.  R.  Co. 
V.  Baer  Bros.  Mercantile  Co.,  187 
Fed.  485,  109  C.  C.  A.  337.  The 
Court  of  Appeals  was  reversed 
and  the  District  Court  affirmed 
by  the  Supreme  Court:  Baer 
Bros.  Mer.  Co.  v.  Denver  & 
R.  G.  R.  Co.,  note  94,  supra, 
and  see  Baer  Bros.  Mer.  Co.  v. 
Mo.  Pac.  Ry.  Co.,  17  L  C.  C. 
225.  The  petition  to  set  aside 
this  order  was  dismissed,  a  pre- 
liminary injunction  having  been 
denied,  Denver  &  R.  G.  R.  Co. 
V.  Int.  Com.  Com.,  195  Fed.  968, 
Opinion  Com.  Ct.  No.  35,  p.  401. 
'"  National  Pole  Co.  v.  Chicago 
&  M.  O.  Ry.  Co.,  211  Fed.  65, 
See  also  Note  65,  supra. 


430  Enforcement  by  the  Courts  [§  318. 

on  such  an  award  attorneys  fees  may  be  allowed  by  the  court. ^^ 

It  would  seem,  therefore,  that  when  the  Commission  follows 
the  authority  given  in  the  statute,  the  power  of  attorney  under 
which  it  acts,  the  effect  given  its  findings  should  be  those  stated 
in  Cincinnati,  H.  &  D.  R.  Co.  v.  Int.  Com.  Com.,  where  the  Su- 
preme Court  says  :^^ 

"The  statute  gives  prima  facie  efifect  to  the  findings  of  the 
Commission,  and,  when  those  findings  are  concurred  in  by  the 
circuit  court,  we  think  they  should  not  be  interfered  with  unless 
the  record  established  that  clear  and  unmistakable  error  has  been 
committed." 

§  318.  Awards  of  Damages — Parties  and  Procedure. — In 
suits  on  orders  of  the  Commission  awarding  damages,  all  par- 
ties in  whose  favor  the  Commission  may  have  made  an  award  by 
a  single  order, may  be  joined  as  plaintiffs,  and  all  of  the  carriers 
parties  to  such  order  awarding  such  damages  may  be  joined  as 
defendants,  and  such  suit  may  be  maintained  by  such  joint  plain- 
tift's  and  against  such  joint  defendants  in  any  district  where  any 
one  of  such  joint  plaintift's  could  maintain  such  suit  against  any 
one  of  such  joint  defendants;  and  service  of  process  against  any 
one  of  such  defendants  as  may  not  be  found  in  the  district  where 
the  suit  is  brought  may  be  made  in  any  district  where  such  de- 
fendant carrier  has  its  principal  operating  office.  In  case  of  such 
joint  sviit  the  recovery,  if  any,  may  be  by  judgment  in  favor  of 
any  one  of  such  plaintift's,  against  the  defendant  found  to  be 
liable  to  such  plaintift".^'^'^ 

§  319.  Procedure  to  Enforce  or  Annul  Orders  of  the  Com- 
mission.— The  jurisdiction  conferred  on  the  Commerce  Court 
stated  in  section  298  above  was  transferred  to  the  district  courts 
by  the  Act  of  October  22,  1913, i*^^  and  that  Act  further  provides 
that  the  procedure  in  the  district  courts  in  respect  to  cases  of 
which  jurisdiction  is  conferred  upon  them  by  this  act  shall  be 
the  same  as  that  heretofore  prevailing  in  the  Commerce  Court. 
The  orders,  writs,  and  processes  of  the  district  courts  may  in 
these  cases  run,  be  served,  and  be  returnable  anywhere  in  the 
United  States. 

Cases  pending  in  the  Commerce  Court  at  the  date  that  court 

'^  Chicago,    B.    &   Q.    R.    Co.   7-.  Int.    Com.    Com..    206    U.    S.    142, 

Feintuck,   191  Fed.  482.   112   C.   C.  51  L.  Ed.  995,  27  Sup.  Ct.  648. 

A.  126.  '°°Sec.  16  of  Act;  Sec.  407,  post. 

^  Cincinnati,  H.  &  D.  R.  Co.  v.  ""  Sec.    460,   461,   463.   post. 


§  320.]  OF  Act  to  Regulate;  Commerce;.  431 

became  abolished  were  by  the  statute  transferred  to  the  proper 
district  courts,  and  authority  was  given  to  the  Judges  of  the 
Commerce  Court  to  make  orders  necessary  to  effectuate  such 
transfer.  And  after  that  date,  cases  remanded  by  the  Supreme 
Court  which  had  been  appealed  from  the  Commerce  Court  were 
to  be  remanded  to  a  district  court,  designated  by  the  Supreme 
Court,  wherein  it  might  have  been  instituted  at  the  time  it  was 
instituted  in  the  Commerce  Court. 

§  320.  Interlocutory  Injunctions — Three  Judges  to  Hear 
Application  for. — The  District  Court  Jurisdiction  act  provides: 

"No  interlocutory  injunction  suspending  or  restraining  the  en- 
forcement, operation,  or  execution  of,  or  setting  aside,  in  whole 
or  in  part,  any  order  made  or  entered  by  the  Interstate  Commerce 
Commission  shall  be  issued  or  granted  by  any  district  court  of 
the  United  States,  or  by  any  judge  thereof,  or  by  any  circuit  judge 
acting  as  district  judge,  unless  the  application  for  the  same  shall 
be  presented  to  a  circuit  or  district  judge,  and  shall  be  heard 
and  determined  by  three  judges,  of  whom  at  least  one  shall  be  a 
circuit  judge,  and  unless  a  majority  of  said  three  judges  shall 
concur  in  granting  such  application.  When  such  application  as 
aforesaid  is  presented  to  a  judge,  he  shall  immediately  call  to 
his  assistance  to  hear  and  determine  the  application  two  other 
judges." 

This  provision  is  similar  to  section  17  of  the  Act  June  18, 
1910,  which  section  had  reference  to  injunctions  against  state 
laws  and,  as  amended,  against  orders  made  by  administrative 
state  officers,^"-  and  the  decisions  on  that  statute  are  of  value  in 
considering  this  provision. 

Where  only  one  judge  acts  on  an  application  for  an  interlocu- 
tory injunction  his  order  is  a  nullity.  As  said  by  the  Supreme 
Court,  "the  hearing  and  determination  of  the  request  for  a  tem- 
porary injunction  should  have  been  had  before  a  court  consisting 
of  three  judges  constituted  in  the  mode  specified  by  the  statute. 

*  *  *  A  tribunal  not  so  constituted  did  not  possess  jurisdic- 
tion."i«3 

'"=  Judicial       Code,       Sec.       266,  Co.,  220  U.  S.  539,  55  L.  Ed.  576, 

amended    by    act    March    4,    1913,  31    Sup.    Ct.    600;   and   see   Louis- 

37  Stat.  1013;  Louisville  &  N.  R.  ville  &  N.  R.  Co.  v.  Garrett,  231 

Co.   V.    U.    S.,    238   U.    S.    1,    59    L.  U.   S.   298,  58   L.   Ed.  229,  34  Sup. 

Ed.  — ,  35  Sup.   Ct.  696.  Ct.  48;  Louisville  &  N.  R.  Co.  v. 

"'  Ex  parte  Metropolitan  Water  Railroad    Com.   of  Ala.,   208    Fed. 


432  Enforcement  by  the  Courts  [§  321. 

§  321.  Interlocutory  Injunctions — Notice  and  Hearing. — 

No  application  for  an  interlocutory  injunction  enjoining,  in  wliole 
or  in  part,  any  order  of  the  Interstate  Commerce  Commission 
shall  "be  heard  or  determined  before  at  least  five  days'  notice  of 
the  hearing  has  been  given  to  the  Interstate  Commerce  Commis- 
sion, and  to  such  other  persons  as  may  be  defendants  in  the  suit ; 
provided  that  in  cases  where  irreparable  damages  would  other- 
wise ensue  to  the  petitioner,  a  majority  of  said  three  judges  con- 
curring, may,  on  hearing,  after  not  less  than  three  days'  notice 
to  the  Interstate  Commerce  Commission  and  the  Attorney  Gen- 
eral, allow  a  temporary  stay  or  suspension,  in  whole  or  in  part, 
of  the  operation  of  the  order  of  the  Interstate  Commerce  Com- 
mission for  not  more  than  sixty  days  from  the  date  of  the  order 
of  said  judges  pending  the  application  for  the  order  or  injunc- 
tion, in  which  case  the  said  order  shall  contain  a  specific  finding, 
based  upon  evidence  submitted  to  the  judges  making  the  order 
and  identified  by  reference  thereto,  that  such  irreparable  damage 
would  result  to  the  petitioner  and  specifying  the  nature  of  the 
damage.  The  said  judge  may,  at  the  time  of  hearing  such 
application,  upon  a  like  finding,  continue  the  temporary  stay  or 
suspension  in  whole  or  in  part  until  decision  upon  the  application. 
The  hearing  upon  such  application  for  an  interlocutory  injunc- 
tion shall  be  given  precedence  and  shall  be  in  every  way  expe- 
dited and  be  assigned  for  a  hearing  at  the  earliest  practicable  day 
after  the  expiration  of  the  notice  hereinbefore  provided  for.''^*^^ 
The  language  relating  to  a  statement  of  facts  as  to  irreparable 
damages  to  be  made  by  the  court  granting  an  injunction  is  the  same 
as  that  in  the  Commerce  Court  Act.  Construing  the  language  in 
that  Act  the  Supreme  Court  held  that  there  were  three  things  pro- 
vided for,  (1)  a  temporary  restraining  order,  (2)  an  injunction 
pendente  lite,  and  (3)  a  perpetual  injunction,  and  that  "the  state- 
ment of  facts  as  to  irreparable  damages  relate  only  to  the  first 
class  of  cases,"  and  it  was  ruled  that  the  granting  of  an  injunc- 
tion pendente  lite  rested  in  the  sound  discretion  of  the  trial 
court.105 

35;    where    an    order    of    a    State  ^"^  Judicial  Code  Sec.  20S. 

Railroad     Commission     was     in-  ^"'United  States  v.  Baltimore  & 

volved    but    no    interlocutory    in-  O.    R.    Co.,   225   U.    S.   306,   56   L. 

junction  asked,  three  judges  were  Ed.    1100,    32    Sup.    Ct.    817.      See 

not  necessary,  Seaboard  Air  Line  same  case.  United  States  v.  Balti- 

Ry.  Co.  V.  Railroad  Com.  of  Ga.,  more  &  O.  R.  Co.,  231  U.  S.  274, 

213    Fed.    27.  58   L.   Ed.  218.  34  Sup.   Ct.  75,  76. 


§  322.]  OF  Act  to  Regulate  Commerce.  433 

The  reenactment  of  the  statute  in  the  District  Court  Jurisdic- 
tion Act  adopts  this  prior  construction  whether  it  be  fully  sup- 
ported by  the  language  of  the  statue  or  not. 

§  322.  Interlocutory  Injunctions — Appeal  from. — An  ap- 
peal may  be  taken  direct  to  the  Supreme  Court  of  the  United 
States  from  the  order  granting  or  denying,  after  notice  and  hear- 
ing, an  interlocutory  injunction,  in  such  case  if  such  appeal  be 
taken  within  thirty  days  after  the  order,  in  respect  to  which 
complaint  is  made,  is  granted  or  refused. 

This  provision  for  appeal  applies  to  interlocutory  injunctions 
and  not  to  a  temporary  stay  or  suspension. i*^"^ 

§  323.  Appeal  from  Final  Judgment. — Upon  the  final  hear- 
ing of  any  suit  brought  to  suspend  or  set  aside,  in  whole  or  in 
part,  any  order  of  said  Commission  the  same  requirement  as 
to  the  judges  and  the  same  procedure  as  to  expedition  and  ap- 
peal shall  apply.  A  final  judgment  or  decree  of  the  district  court 
may  be  reviewed  by  the  Supreme  Court  of  the  United  States  if 
appeal  to  the  Supreme  Court  be  taken  by  an  aggrieved  party 
within  sixty  days  after  the  entry  of  such  final  judgment  or  de- 
cree, and  such  appeals  may  be  taken  in  like  manner  as  appeals 
are  taken  under  existing  law  in  equity  cases.  And  in  such  case 
the  notice  required  shall  be  served  upon  the  defendants  in  the 
case  and  upon  the  Attorney  General  of  the  state. 

Section  two  of  the  Act  of  June  18,  1910,  relating  to  appeals 
from  the  Commerce  Court  gave  the  Commerce  Court  power  to 
"direct  the  original  record  to  be  transmitted  on  appeal  instead 
of  a  transcript  thereof,"  and  provided  that  an  appeal  should  not 
stay  or  supersede  the  judgment  appealed  from  unless  so  ordered 
by  the  Supreme  Court  or  a  justice  thereof,  and  that  appeals 
should  have  priority  in  hearing  and  determination.  Neither  of 
these  provisions  is  contained  in  the  repealing  Act. 

§  324.  Venue  of  Suits. — The  venue  of  any  suit  hereafter 
brought  to  enforce,  suspend,  or  set  aside,  in  whole  or  in  part,  any 
order  of  the  Interstate  Commerce  Commission  shall  be  in  the  ju- 
dicial district  wherein  is  the  residence  of  the  party  or  any  of  the 
parties  upon  whose  petition  the  order  was  made,  except  that 
where  the  order  does  not  relate  to  transportation  or  is  not  made 
upon  the  petition  of  any  party  the  venue  shall  be  in  the  district 
where  the  matter  complained  of  in  the  petition  before  the  Com- 

'""  See  construction  by  Supreme     Court,   Sec.   next  preceding. 


434  Enforcement  by  the  Courts  [§  324. 

mission  arises,  and  except  that  where  the  order  does  not  relate 
either  to  transportation  or  to  a  matter  so  complained  of  before 
the  Commission  the  matter  covered  by  the  order  shall  be  deemed 
to  arise  in  the  district  where  one  of  the  petitioners  in  court  has 
either  its  principal  office  or  its  principal  operating  office.  In  case 
such  transportation  relates  to  a  through  shipment  the  term  "des- 
tination" shall  be  construed  as  meaning  final  destination  of  such 
shipment.^^'^ 

The  venue  here  prescribed  is  not  so  broad  as  that  stated  in 
section  16  of  the  Act  under  which  suit  may  be  brought  wherein 
is  the  residence  of  the  party  upon  whose  petition  or  for  whose 
benefit  the  order  was  made,  and  also  in  the  district  "in  which  is 
located  the  principal  operating  office  of  the  carrier,  or  through 
which  the  road  of  the  carrier  runs."^*^^ 

"'  Sees.    463    to    469,    post.  "'  Sec.   407,   post. 


CHAPTER  VIII. 

Acts  of  Congress  Indirectly  Afeecting  Interstate  Trans- 
portation. 

^  325.  Scope   of   Chapter. 

326.  Quarantine  Laws   Relating  to  Transportation. 

337.  Sherman  Anti-Trust   Law. 

328.  Clayton   Anti-Trust    Law. 

329.  Federal  Trade   Commission   Law. 

330.  Safety  x\ppliance   Law. 

331.  Hours  of  Service  Law. 

332.  Employers'   Liability   Law.     ■ 

333.  Arbitration  Law. 

334.  Breaking    Seals    of    Railroad    Cars    Containing    Interstate    or 

Foreign    Commerce. 

§  325.  Scope  of  Chapter. — The  general  purpose  of  this  work 
is  to  state  the  law  governing  the  transportation  of  freight  and 
passengers.  It  is  not  a  treatise  on  the  general  law  of  carriers, 
nor  is  it  a  discussion  of  the  commerce  clause  of  the  Constitution 
of  the  United  States.  These  questions  are  incidentally  involved, 
but  the  main  purpose  of  the  work  is  to  treat  of  the  rights  of 
shippers  and  carriers  which  arise  out  of,  relate  to  or  are  afifected 
by  the  acts  of  Congress.  Of  these  acts,  the  act  to  regulate  com- 
merce, the  amendments  thereof  and  supplements  thereto,  includ- 
ing the  Elkins  law,  are  the  most  important.  These  acts  are 
herein  copied  and  annotated  (see  chapter  nine). 

The  so-called  anti-trust  statutes  being  the  act  of  July  2,  1890 
and  known  as  the  Sherman  Act,  and  the  act  of  Oct.  15,  1914, 
known  as  the  Clayton  Act,  do  affect  carriers,  and  the  Clayton 
Act  expressly  confers  jurisdiction  on  the  Interstate  Commerce 
Commission. 

The  28-hour  law  directly  afifects  the  questions  discussed  in 
this  book  and  that  statute  is  discussed  in  chapter  10  post.  A 
knowledge  of  the  other  statutes  hereinafter  referred  to  is  some- 
times necessary  to  a  clear  understanding  of  the  questions  affect- 
ing the  rights  and  duties  of  carriers  engaged  in  interstate  trans- 
portation. Other  statutes  herein  referred  to  and  inserted  in  ap- 
pendices more  or  less  directly  affect  the  questions  which  must 
be  ascertained  in  the  regulation  of  interstate  transportation  of 

435 


436  Acts  of  Congress  Indirectly  [§  326. 

freights  and  passengers.  For  this  reason,  reference  to  these 
statutes  will  be  made  in  this  chapter. 

§  326.  Quarantine   Laws   Relating  to  Transportation. — 

Health  and  quarantine  laws  generally  have  little  relation  to  rail 
carriers,  although  by  Sec.  3  of  the  act  of  1890  it  was  made  a  misde- 
meanor for  any  common  carrier  to  violate  any  quarantine  laws  of 
the  United  States.^ 

By  the  act  of  Alch.  3,  1905,  railroad  companies  and  carriers  and 
masters  of  steam  vessels  or  other  vessels  or  boats  are  prohibited 
from  receiving  for  transportation  and  from  transporting  in  in- 
terstate commerce,  cattle  or  other  live  stock  except  in  conformity 
to  the  act,  and  it  is  provided  that  the  Secretary  of  Agriculture 
shall  make  and  promulgate  rules  and  regulations  governing  such 
transportation.     Meat  inspection  is  provided  for  by  the  act  of 

1907,  and  the  transportation  in  interstate  commerce  of  "any  car- 
casses or  parts  thereof,  meat  or  other  meat  products  which  have 
not  been  inspected,  examined  and  marked  "Inspected  and  passed" 
in  accordance  with  terms  of  (said)  this  act,  and  with  the  rules 
and  regulations  prescribed  by  the  Secretary  of  Agriculture,"  is 
prohibited.  In  the  agricultural  appropriation  act  of  1908,  the  Act 
of  1907  is  extended  to  include  "dairy  products."^  The  Bureau 
of  Animal  Industry,  a  bureau  of  the  Department  of  Agricul- 
ture, has  charge  of  making,  promulgating  and  enforcing  regula- 
tions under  these  statutes,  and  the  Act  of  1913  ^  makes  all  the 

Wet    March    27,    1S90,    ch.    51,  by    the    Secretary    of   Agriculture 

26   Stat.   31.     See  also   for  health  have  the  force  of  a  statute.    State 

and    quarantine    laws    relating    to  v.  Peet,  80  Vt.  *449,  68  Atl.  661. 
vessels,  3  Fed.  Stat.  Ann.  pp.  214,  '  Act  March  4,  1913,  37  Stat.,  pt. 

228.     See  also  Sec.  6  Act  March  I,    C.    831.     The    Supreme    Court 

3,  1905,  ch.  1496,  33  Stat.  1264,  10  held  that  a   carrier  receiving  the 

Fed.  Stat.  Ann.  37.  cattle   from   a   connecting  carrier 

Wet  March  3,  1905,  ch.  1496,  33  at  a  point  outside  the  quarantine 
Stat.  1264,  10  Fed.  Stat.  Ann.  37,  district  was  not  within  the  pro- 
Act  March  4,  1907,  ch.  2907,  34  vision  of  the  act  of  1905.  United 
Stat.  1260,  Fed.  Stat.  Ann.  March  States  v.  B.  &  O.  S.  W.  R.  Co., 
1909,  p.  46.  See  Sec.  484,  Post  222  U.  S.  S,  56  L.  Ed.  68,  32 
Meat  Inspection  Act,  Act  May  23,  Sup.    Ct.    6.    and    this    act    appar- 

1908,  ch.  192  Fed.  Stat.  Ann.  ently  was  introduced  to  meet  this 
Supp.  1909,  p.  92.  See  also  Acts  decision.  An  ordinance  prohib- 
May  29,  1884,  23  Stat.  31;  March  iting  the  shipment  of  milk  in  in- 
3,  1891,  March  2,  1895,  1  Fed.  terstate  commerce  that  had  not 
Stat.  Ann.  448.  February  2,  1903,  been  inspected,  was  held  valid. 
32    Stat.    791.  Regulations    made  Adams  v.  City  of  Milwaukee,  228 


§  327.]  Affecting  Interstate  Commerce.  437 

provisions  of  the  Act  of  1905  "apply  to  any  railroad  company  or 
other  common  carrier  whose  road  or  line  form  any  part  of  a 
route  over  which  cattle  or  other  live  stock  are  transported  in  the 
course  of  shipment  from  any  quarantined  state  or  territory  or 
the  District  of  Columbia,  or  from  the  quarantined  portion  of 
any"  such  state,,  territory  or  district. 

Regulations  have  been  issued  under  authority  of  these  statutes 
which  prescribe  in  detail  the  rules  to  which  the  carriers  must 
conform.  The  acts  of  Congress  relating  to  federal  quarantine 
are  compiled  with  the  regulations  prescribed  by  the  United  States 
Department  of  Agriculture  in  Bureau  of  Animal  Industry  Order 
210,  issued  June  18,  1914,  and  an  amendment  thereto  issued  Au- 
gust 22,  1914. 

§  327.  Sherman  Anti- Trust  Law. — The  Sherman  Anti- 
Trust  Law  is  copied  and  annotated  in  chapter  eleven  hereof. 
The  act  was  at  first  construed  as  not  applying  to  carriers.  This 
question  was  definitely  settled  in  Trans-Missouri  Freight  Asso. 
case.'^    In  this  case  the  court  said : 

"The  language  of  the  act  includes  every  contract,  combination 
in  the  form  of  trust  or  otherwise,  or  conspiracy,  in  restraint  of 
trade  or  commerce  among  the  several  states  or  with  foreign  na- 
tions. So  far  as  the  very  terms  of  the  statute  go,  they  apply  to  any 
contract  of  the  nature  described.  A  contract  therefore  that  is  in 
restraint  of  trade  or  commerce  is  by  the  strict  language  of  the 
act  prohibited  even  though  such  contract  is  entered  into  between 
competing  carriers  by  railroad,  and  only  for  the  purposes  of 
thereby  afifecting  traffic  rates  for  the  transportation  of  persons 
and  property.  *  *  *  The  point  urged  on  the  defendants'  part 
is  that  the  statute  was  not  really  intended  to  reach  that  kind  of 
an  agreement  relating  only  to  traffic  rates  entered  into  by  com- 
peting common  carriers  by  railroad ;  that  it  was  intended  to 
reach  only  those  who  were  engaged  in  the  manufacture  or  sale 
of  articles  of  commerce,  and  who  by  means  of  trusts,  combina- 
tions and  conspiracies  were  engaged  in  affecting  the  supply  or 
the  price   or  the   place  of   manufacture   of   such   articles.     The 

U.  S.  572,  57  L.   Ed.  971,  33  Sup.  485    and    Note    26    L.    R.    A.    (N. 

Ct.    610.      Same    style    case,    144  S.)  279. 

Wis.   371,    129    N.   W.    518,   43    L.  "United    States    v.    Trans-Mis- 

R.  A.  (N.  S.)   1066.     To  same  ef-  souri    Freight    Asso.,    166    U.    S. 

feet  see  Asbell  v.  Kansas,  209  U.  290,   41    L.   Ed.   1007,    17   Sup.   Ct. 

S.  2513,  52  L.  Ed.  778,  28  Sup.  Ct.  540,   1   Fed.   Anti-Trust   Dec.   648. 


438  Acts  of  Congress  Indirectly  [§  327. 

terms  of  the  act  do  not  bear  out  such  construction.  Railroad 
companies  are  instruments  of  commerce,  and  their  business  is 
commerce  itself.'' 

This  ruling  was  followed  in  the  Joint  Traffic  case.^ 
That  a  violation  of  this  act  in  advancing  rates  was  a  proper 
matter  to  be  considered  when  complaint  was  brought  against  the 
advanced  rates,  was  determined  in  the  Tift  case.^  The  amend- 
ment of  June  18,  1910"  placing  the  burden  on  the  carriers  to 
show  that  rates  increased  after  January  1,  1910,  are  just  and  rea- 
sonable applies  the  same  burden  which  the  Commission  held  re- 
sulted when  rates  were  increased  as  an  effect  of  an  illegal  com- 
bination. However,  interstate  carriers  may  not  by  consolidation 
or  combination  create  a  dominating  control  and  thereby  unduly 
restrict  or  suppress  competition  in  transportation.^  In  establish- 
ing through  routes  and  joint  rates,  a  common  carrier  may  not 
with  the  intent  and  result  of  eliminating  competition  select  one 
carrier  and  exclude  others.^  Where  a  carrier  had  established  a 
wharf  as  a  public  terminal  station  for  the  delivery  of  coal,  it 
could  not  lawfully  contract  granting  the  exclusive  right  to  a 
single  tug  to  dock  and  undock  vessels  thereat.i*'  While  such  a 
contract  might  be  illegal  under  the  provisions  of  the  act  to  regu- 
late commerce  prohibiting  undue  discrimination,  the  anti-trust 
statutes  and  such  provisions  have  as  one  common  object  the  re- 
quirement that  no  undue  or  unjust  preference  shall  be  accorded. 
This  rule  was  not  applied  to  a  contract  by  which  a  long  distance 
telephone  company  made  an  agreement   for  the  interchange  of 

'United   States  v.  Joint  Traffic  Ry.  &  Nav.  Co.,  228  U.  S.  87,  57 

Asso.,    171    U.    S.    505,    43    L.    Ed.  L.  Ed.  742,  33  Sup.  Ct.  433. 

259,  19  Sup.   Ct.  25,  1  Fed.  Anti-  "  Baker-Whiteley    Coal    Co.    v. 

Trust   Dec.   869.  Baltimore  &  O.  R.  Co.,  IBS  Fed. 

'Tift  V.  Southern  Ry.   Co.,  138  405,    110   C.    C.   A.   234,   reversing 

Fed.  753,  2  Fed.  Anti-Trust  Dec.  same  style  case  176  Fed.  632,  and 

733;  Tift  v.  S.  Ry.  Co.,  10  I.  C.  C.  citing   and    discussing   cases,    dis- 

548.  tinguishing      Weems      Steamboat 

^  Sec.    92.      Ante,    Post.  Co.  v.  Peoples  Co.,  214  U.  S.  345, 

"United  States  v.  Union  P.  R.  53  L.  Ed.  1024,  29  Sup.  Ct.  661. 
R.  Co.,  226  U.  S.  61,  57  L.  Ed.  and  Louisville  &  N.  R.  R.  Co.  v. 
124,  33  Sup.  Ct.  53,  United  West  Coast  Naval  Stores  Co- 
States  V.  Reading  Co.,  226  U.  S.  198  U.  S.  483,  49  L.  Ed.  1135,  25 
324,  57  L.  Ed.  243,  33  Sup.  Ct.  90.  Sup.    Ct.    745. 

"United   States   v.  Pacific   &  A. 


§  328.]  Affecting  Interstate  Commerce.  439 

messages  with  a  local  company  to  the  exclusion  of  all  other  like 
companies. ^^ 

§  328.  The  Clayton  Anti-Trust  Law. — The  purpose  of  the 
anti-trust  statute  approved  Oct.  15,  1914,^^  ^y^g  ^q  make  more 
definite  the  provisions  of  the  Sherman  Act,  and  to  provide  more 
effective  means  for  enforcing  the  former  act.  Section  11  of  the 
Clayton  Act  gives  authority  to  the  Interstate  Commerce  Com- 
mission to  enforce  the  provisions  of  designated  sections  of  the 
act,  and  section  10  is  a  regulation  of  interstate  carriers  with  ref- 
erence to  certain  contracts  therein  specified.  This  act  and  the 
Sherman  Anti-Trust  Act  are  contained  in  chapter  11  of  this 
book. 

§  329.  Federal  Trade  Commission. — The  act  to  create  a 
federal  trade  commission,  approved  September  26,  1914,^^  gives 
the  commission  so  created  certain  regulatory  powers  over  corpora- 
tions, firms  and  partnerships  engaged  in  interstate  commerce 
other  than  those  subject  to  regulation  by  the  Interstate  Com- 
merce Commission.  The  Act.  Sec.  4,  defines  certain  words, 
among  which  are : 

"Commerce  means  commerce  among  the  several  states  or  -with 
foreign  nations,  or  in  any  territory  of  the  United  States,  or  in 
the  District  of  Columbia,  or  between  any  such  territory  and  an- 
other, or  between  any  such  territory  and  any  state  or  foreign 
nation,  or  between  the  District  of  Columbia  and  any  state  or  ter- 
ritory or  foreign  nation." 

"  'Acts  to  regulate  commerce'  means  the  act  entitled  'An  Act 
to  Regulate  Commerce'  approved  February  14th,  1887,  and  all 
acts  amendatory  thereof  and  supplementary  thereto." 

Sec.  11  provides:  "Nothing  contained  in  this  act  shall  be 
construed  to  prevent  or  interfere  with  the  enforcement  of  the 

''Pacific  Telephone  &  Tel.   Co.  Denver,    etc.,    R.    R.    Co..    110   U. 

V.  Anderson,   196  Fed.   699,   citing  S.   667,  28   L.   Ed.  291,  4   Sup.   Ct. 

and    discussing   State   v.    Cadwal-  185;    St.    Louis    I.    M.    &    S.    Ry. 

lader,  172  Ind.  619,  87  N.  E.  644,  Co.  v.  Southern  Express  Co.  Ex- 

89   N.   E.  319;   Home  Tel.    Co.  v.  press    Cases,    117   U.    S.    1,   29    L. 

Sarcoxie    Light    &    Tel.    Co.,    236  Ed.     791,     6     Sup.     Ct.    542,    628; 

Mo.    114,    139    S.    W.    108;    Home  Union    Pac.    Ry.    Co.    v.    United 

Tel.  Co.  V.  People's  Tel.  Co.,  125  States,  59  Fed.  813,  827,  8  C.  C.  A. 

Tenn.   270,   141    S.  W.   845;   Home  282,   296. 

Tel.   Co.  V.  Granby  Tel.   Co.,   147  "See  Sees.  495,  et  seq.,  post. 

Mo.    App.    216.    126    S.    W.    773;  ''Appendix  A. 
Atchison   T.    &   S.    F.    Ry.    Co.   v. 


440      •  Acts  of  Congress  Indirectly  [§  330. 

provisions  of  the  anti-trust  acts,  or  the  acts  to  regulate  commerce, 
nor  shall  anything  contained  in  this  act  be  construed  to  alter, 
modify  or  repeal  the  said  anti-trust  acts,  or  the  acts  to  regulate 
commerce,  or  any  part  or  parts  thereof." 

§  330.  Safety  Appliance  Law. — Under  the  title  Safety  Ap- 
pliance Acts  may  be  included  the  Automatic  Coupler  Act  (Ap- 
pendix B),  of  ]\Iarch  2,  1893;  as  amended  April  1,  1896;  a  sup- 
plement to  the  Automatic  Coupler  Act  passed  March  2,  1903, 
(Appendix  C)  ;  the  supplement  to  the  Automatic  Coupler  Act 
approved  April  14,  1910,  and  March  4,  1911,  (Appendix  D)  ;  the 
act  requiring  reports  of  accidents,  approved  Alay  6,  1910,  (Ap- 
pendix E)  ;  the  ]\Iedals  of  Honor  Acts,  approved  Feb.  23,  1905, 
(Appendix  F)  ;  the  Hours  of  Service  Act  (Appendix  G),  ap- 
proved  March  4,    1907;   the  Ash   Pan  Act,   approved   ]\Iay  30, 

1908,  (Appendix  H);   the  Explosive  Acts,  approved  March  4, 

1909,  (Appendix  I)  ;  the  Boiler  Inspection  Act  approved  Feb. 
17,  1911,  (Appendix  J). 

These  acts  may  not  all  be  logically  classed  as  safety  appliance 
acts,  yet  they  all  relate  to  the  safety  of  interstate  transportation 
and  may  properly  be  considered  together. 

These  acts  rest  upon  the  right  of  Congress  to  regulate  com- 
merce with  foreign  nations  and  among  the  several  states.  The 
primary  object  of  all  these  acts  was  to  promote  the  public  wel- 
fare by  securing  the  safety  of  employees  and  travelers ;  the 
acts  are,  therefore,  remedial,  and  should  be  so  construed  as  not 
to  defeat  the  obvious  intentions  of  Congress. 

By  the  Sundry  Civil  Appropriation  Act  of  June  28,  1902,  the 
Commission  is  given  authority  to  employ  "inspectors  to  execute 
and  enforce  the  requirements  of  the  Safety  Appliance  Acts." 

§  331.  Hours  of  Service  Law. — The  Hours  of  Service  Act 
limits  the  time  for  which  railroads  may  require  or  permit  em- 
ployees subject  to  be  or  remain  on  duty,  gives  the  Commission 
power  "after  full  hearing  in  a  particular  case  and  for  good  cause 
shown  to  extend"  the  time  within  which  the  carriers  included  in 
the  act  shall  employ  with  the  proviso  of  Section  2,  and  provides 
for  penalties  for  violations  of  the  act.i'* 

The  Commission  has  held  that  this  act  applies  to  street  car 

"  Schweig  V.  Chicago  AI.  &  St.       Kent's    Digest    of    Decisions    un- 
P.  Ry.  Co.,  205  Fed.  96.     See  for       der      Safety   Appliance   Acts, 
a    full    discussion    of    these    acts 


§  331.: 


AfFe:cting  Interstate  Comme;rce. 


441 


lines  which  are  interstate  carriers  ;^^  that  it  does  not  apply  to 
employees  deadheading  on  passenger  trains  not  engaged  in  the 
performance  of  any  service,  ^^  nor  to  a  ferry  owned  by  a  rail- 
road not  used  as  a  car  ferry/"  nor  to  a  trainman  occasionally 
using  the  telegraph  or  telephone  to  meet  an  emergency. ^^  The 
Commission  by  conference  rulings  88  and  287  has  interpreted 
the  act,  and  these  rulings  are  inserted  in  a  note  hereto.^''    A  sep- 


''Conf.   Rul.   56. 

"Conf.  Rul.  74;  South  Coving- 
ton R.  Co.  V.  Covington,  235  U. 
S.  537,  59  L.  Ed.  — ,  35  Sup.  Ct. 
158. 

"Conf.   Rul.   108. 

"Conf.   Rul.  342. 

"Conf.  Rul.  88  is  as  follows: 

88.  HOURS -OF -SERVICE 
LAW. — (a)  The  specific  proviso 
of  the  law  in  regard  to  hours  of 
service  is: 

"That  no  operator,  train  dis- 
patcher, or  other  other  employee 
who  by  the  use  of  the  telegraph 
or  telephone  dispatches,  reports, 
transmits,  receives,  or  delivers 
orders  pertaining  to  or  affecting 
train  movements  ^shall  be  re- 
quired or  permitted  to  be  or  re- 
main on  duty  for  a  longer  period 
than  nine  hours  in  any  twenty- 
four-hour-period  in  all  towers,  of- 
fices, places  and  stations  con- 
tinuously operated  night  and  day, 
for  a  longer  period  than  thirteen 
hours  in  all  towers,  offices, 
places,  and  stations  operated 
only  during  the  daytime,  except 
in  case  of  emergency,  when  the 
employees  named  in  this  proviso 
may  be  permitted  to  be  and  re- 
main on  duty  for  four  additional 
hours  in  a  twenty-four  hour 
period  on  not  exceeding  three 
days   in   any  week." 

These  provisions  apply  to  em- 
ployees in  towers,  offices,  places, 
and  stations,  and  do  not  include 
train    employees     who,     by     the 


terms  of  the  law,  are  permitted 
to  be  or  remain  on  duty  sixteen 
hours  consecutively  or  sixteen 
hours  in  the  aggregate  in  any 
twenty-four  hour  period,  and 
who  may  occasionally  use  tele- 
graph or  telephone  instruments 
for  the  receipt  or  transmission 
of  orders  affecting  the  movement 
of  trains.     (See  Ruling  287.) 

{b)  Section  3  of  the  law  pro- 
vides that: 

"The  provisions  of  this  act 
shall  not  apply  in  any  case  of 
casualty  or  unavoidable  accident 
or  the  act  of  God;  nor  where 
the  delay  was  the  result  of  a 
cause  not  known  to  the  carrier 
or  its  officer  or  agent  in  charge 
of  such  employee  at  the  time 
said  employee  left  a  terminal, 
and  which  could  not  have  been 
foreseen." 

Any  employee  so  delayed  may 
therefore  continue  on  duty  to  the 
terminal  or  end  of  that  run. 
The  proviso  quoted  removes  the 
application  of  the  law  to  that 
trip.      (See    Ruling   287.) 

Conf.  Rul.  287  is  as  follows: 
March  i6,  1908. 

287.  THE  HOURS  OF  SERV- 
ICE LAW.— (a)  The  provisions 
of  this  act  apply  to  all  common 
carriers  by  railroad  in  the  Dis- 
trict of  Columbia,  or  in  any  Ter- 
ritory of  the  United  States,  or 
engaged  in  the  movement  of  in- 
terstate or  foreign  traffic;  and 
to    all    employees    of    such    com- 


442  Acts  of  Congress  Indirectly  [§  331. 

arate  penalty  is  incurred  for  each  employee  remaining  on  duty  in 


mon  carriers  who  are  engaged  in 
or  connected  with  the  movement 
of  any  train  carrying  traffic  in 
the  District  of  Columbia,  or  in 
any  Territory,  or  carrying  inter- 
state or  foreign  traffic. 

(b)  Sec.  2.  The  requirement 
for  ten  consecutive  hours  off 
duty  applies  only  to  such  em- 
ployees as  have  been  on  duty  for 
sixteen  consecutive  hours.  The 
requirement  for  eight  consecu- 
tive hours  off  duty  applies  only 
to  employees  who  have  not  been 
on  duty  sixteen  consecutive 
hours,  but  have  been  on  duty 
sixteen  hours  in  the  aggregate 
out  of  a  twenty-four  hour  period. 
Such  twenty-four  period  begins 
at  the  time  the  employee  first 
goes  on  dutj'  after  having  had 
at  least  eight  consecutive  hours 
off  duty.  The  term  "on  dut}'" 
includes  all  the  time  during 
which  the  employee  is  perform- 
ing service,  or  is  held  responsible 
for  performance  of  service.  An 
employee  goes  "on  duty"  at  the 
time  he  begins  to  perform  serv- 
ice, or  at  which  he  is  required 
to  be  in  readiness  to  perform 
service,  and  goes  "oflf  duty"  at 
the  time  he  is  relieved  from  serv- 
ice and  from  responsibility  for 
performance    of   service. 

(c)  The  act  does  not  specify 
the  classes  of  employees  that  are 
subject  to  its  terms.  All  em- 
ployees engaged  in  or  connected 
with  the  movement  of  any  train, 
as  described  in  section  1,  are 
within  its  scope.  Train  dis- 
patchers, conductors,  engineers, 
telegraphers,  firemen,  brakemen, 
train  baggagemen,  who,  by  rules 
of   carriers,    are   required    to   per- 


form any  dutj"  in  connection 
with  the  movement  of  trains, 
yardmen,  switch  tenders,  tower 
men,  block-signal  operators,  etc., 
come  within  the  provisions  of 
the  statute.    (See  also  Ruling  88.) 

(d)  The  proviso  in  section  2 
covers  every  employee  who,  bj' 
the  use  of  the  telegraph  or  tele- 
phone, handles  orders  pertaining 
to  or  affecting  train  movements. 
In  order  to  preserve  the  obvious 
intent  of  the  law  this  provision 
must  be  construed  to  include  all 
employees  who,  by  the  use  of  an 
electrical  current,  handle  train 
orders,  or  signals  which  control 
movements  of  trains.  (See  Rul- 
ing  88.) 

(e)  The  prime  purpose  of  this 
law  is  to  secure  additional  safety 
by  preventing  employees  from 
working  longer  hours  than  those 
specified  in  the  act.  Therefore 
a  telegraph  or  telephone  operator 
who  is  emploj'cd  in  a  night  and 
day  office  maj'  not  be  required 
to  perform  duty  in  any  capacity 
or  of  any  kind  beyond  nine  hours 
of  total  service  in  any  twenty- 
four  hour  period. 

(/)  The  phrase  "towers,  of- 
fices, places,  and  stations"  is  in- 
terpreted to  mean  particular  and 
definite  locations.  The  purpose 
of  the  law  and  of  the  proviso  for 
nine  hours  of  service  may  not  be 
avoided  by  erecting  offices,  sta- 
tions, depots,  or  buildings  in 
close  proximity  to  each  other 
and  operating  from  one  a  part 
of  the  day  while  the  other  is 
closed,  and  vice  versa. 

The  statute  is  remedial  in  its 
intent  and  must  have  a  broad 
construction   so   that   the  purpose 


§  331.] 


Affecting  Intfrstate  Commfrce. 


443 


violation  of  the  act,  and  the  statute  relates  to  employees  on  duty, 
although  they  may  be  inactive.-^ 


of  the  Congress  may  not  be  de- 
feated. 

(g)  The  Commission  interprets 
the  phrase  "continuously  op- 
erated night  and  day"  as  apply- 
ing to  all  offices,  places,  and  sta- 
tions operated  during  a  portion 
of  the  day  and  a  portion  of  the 
night,  a  total  of  more  than  thir- 
teen  hours. 

The  phrase  "operated  only 
during  the  daytime"  refers  to 
stations  which  are  operated  not 
to  exceed  thirteen  hours  in  a 
twenty-four  hour  period,  and  is 
not  considered  as  meaning  that 
the  operator  thereat  may  be  em- 
ployed  only   during   the   daytime. 

(h)  The  act  provides  that  op- 
erators employed  at  night  and 
day  stations  or  at  daytime  sta- 
tions may,  in  case  of  emergency, 
be  required  to  work  four  addi- 
tional hours  on  not  exceeding 
three  days  in  any  week.  Mani- 
festly, the  emergency  must  be 
real  and  one  against  which  the 
carrier    can    not    guard. 

"In  any  week"  is  construed  to 
mean  in  any  calendar  week,  be- 
ginning with  Sunday. 

(i)  Sec.  3.  The  instances  in 
which  the  act  will  not  apply  in- 
clude only  such  occurrences  as 
could  not  be  guarded  against; 
those  which  involved  no  neglect 
or  lack  of  precaution  on  the  part 
of  the  carrier,  its  agents,  or  of- 
ficers; and  they  serve  to  waive 
the  application  of  the  law  to  em- 
ployees on  trains  only  until  such 
employees,  so  delayed,  reach  a 
terminal  or  relay  point.  (See 
Ruling   88.) 

"Casualty,"  like  its  synonyms 
"accident"    and    "misfortune,"    may 


proceed  or  result  from  negligence 
or  other  cause  known  "or  un- 
known. (Words  and  Phrases  Ju- 
dicially  Defined,   vol.  2,   1003.) 

Act  of  God.  Any  accident  due 
to  natural  causes  directly  and  ex- 
clusively without  'human  inter- 
vention, such  as  could  not  have 
been  prevented  by  any  amount 
of  foresight,  and  pains,  and  care 
reasonable  to  have  been  expected. 
(Bouvier's  Law  Dictionary,  vol. 
1,    79.) 

(;)  It  will  be  noted  that  the 
penalties  for  violation  of  this  act 
are  against  the  "common  car- 
riers, or  any  officer  or  agent 
thereof,  requiring  or  permitting 
any  employee  to  go,  be,  or  remain 
on  duty,"  in  violation  of  the  law. 
It  is  clear  that  the  officers  and 
agents  of  carriers  who  are  liable 
to  the  penalties  provided  in  the 
act  are  those  who  have  official 
direction  or  control  of  the  em- 
ployees; and  that  the  penalties 
do  not  attach  to  the  employees 
who,  subject  to  such  supervision 
or  control,  perform  the  service 
prohibited. 

(k)  Sec  4.  To  enforce  this  act 
Interstate  Commerce  Commis- 
sion has  all  the  powers  which 
have  been  granted  to  it  for  the 
enforcement  of  the  act  to  regu- 
late commerce,  including  author- 
ity to  appoint  employees,  to  re- 
quire reports,  to  examine  books, 
papers,  and  documents,  to  ad- 
minister oaths,  to  issue  sub- 
poenas, and  to  interrogate  wit- 
nesses. 

'"Mo.,  Kan.  cSj  Tex.  Ry.  Co.  v. 
U.  S.,  231  U.  S.  112,  58  L.  Ed. 
144,  34  Sup.   Ct.  26. 


444  Acts  of  Congress  Indirectly  [§  332. 

§  332.  Employers'  Liability  Law. — The  first  Employers' 
Liability  Act,  that  of  June  11,  1906,  chap.  3073,  34  Stat.  L.  232, 
was  declared  by  the  Supreme  Court  of  the  United  States  to  be 
unconstitutional,  because,  as  construed,  it  applied  not  only  to  the 
employees  of  carriers  engaged  in  interstate,  but  also  to  carriers 
while  engaged  in  intrastate  commerce.  Whether  the  act  violated 
the  14th  Amendment  was  not  decided,  but  reference  was  made  to 
decisions  of  the  court  holding  valid  state  laws  making  a  special 
regulation  as  to  a  carrier's  liability  to  its  employees.-^ 

The  present  act  (Appendix  K)  was  approved  April  22,  1908,^2 
and  its  validity  has  been  sustained  by  the  Supreme  Court. -^  Dif- 
ferences of  opinion  having  arisen  as  to  the  jurisdiction  of  the 
state  courts,  the  act  was  amended  in  1910,  by  providing  that  state 
and  federal  courts  should  have  concurrent  jurisdiction  in  suits 
brought  under  the  act  and  for  the  survivorship  of  causes  of  ac- 
tion.^^ 

This  act  indirectly  affects  the  questions  considered  in  this 
book,  and  further  discussion  thereof  is  unnecessary. 

§  333.  Arbitration  Law.— The  act  of  June  1,  1898,2^  known 
as  the  Arbitration  /\ct,  or  sometimes  as  the  Erdman  Act,  had  as 
its  purpose  the  settlement  of  controversies  between  carriers  and 
their  employees.  This  statute  is  persuasive  and  does  not  at- 
tempt to  be  compulsory.  Arbitrators  under  the  act  are  essen- 
tially common  law  arbitrators  and  rights  of  the  parties  thereto 
rest  upon  the  contract  of  arbitration,   which  contract  must  be 

'"■  Employers'     Liability     Cases,  Liability  Act),  223  U.  S.  1,  56  L. 

Howard  v.   111.   Cent.   R.   Co.,  207  Ed.    327,    32    Sup.    Ct.    169,    38    L. 

U.  S.  463,  52  L.  Ed.  297.  2S  Sup.  R.  A.,   N.  S.,  44;   Philadelphia  B. 

Ct.    141;    Missouri,    P.    R.    Co.    z:  &  W.  R;  Co.  v.  Schubert,  224  U. 

Mackey,     127     U.     S.     205,    32    L-  S.    603,    56    L.    Ed.    911,    32    Sup. 

Ed.   107,   S   Sup.   Ct.   1161;   Minne-  Ct.   589. 

apolis    &    St.    L.    R.    Co.   v.    Her-  "Act   Apr.    5,    1910,    C.    143,   36 

rick,  127  U.  S.  210,  32  L.  Ed.  109,  Stat.    391.      U.     S.     Comp.     Stat. 

8    Sup.    Ct.    1176;    Chicago,    K.    &  Supp.    1911,    p.    1322;    Fed.    Stat. 

W.   R.    Co.   V.   Pontius,   157   U.   S.  Ann.  1912,  Supp.  p.  335.     See  pro- 

209,    39    L.    Ed.    675,    15    Sup.  ,Ct.  viso    to    Sec.    28    Judicial    Code. 

585.  Barnett  z:   Spokane   P.    &  S.   Ry. 

~35    Stat.    65,    ch.    149,    U.     S.  Co.,  210  Fed.  94. 
Comp.   Stat.   Supp.   1911,  p.   1322;  "'.Arbitration    Act,    also    called 

Fed.    Stat.    Ann.    1909    Supp.,    p.  Erdman    Act,    approved    June    1, 

584,   1912  Supp.,  p.   1735.  1898,    chap.    370,    30    Stat.    L.    424, 

"^Alondou  V.  New  York,  N.  H.  et  scq.,  4  Fed.  Stat.  Ann.  784,  U. 

&  H.  R.  Co.   (Second  Employers'  S.   Comp.   Stat.   1901,   p.   3205. 


§  334.]  Affecting  Interstate  Commerce.  445 

construed  in  accordance  with  the  rules  governing  contracts.  In 
an  arbitration  had  in  accordance  with  the  terms  of  the  act,  Judge 
Van  Fleet  speaks  of  the  "very  commendable  object  aimed  at  by 
the  act"  and  says :  -*'  "The  evident,  purpose  of  the  law  was  to 
afford  a  ready  summary,  and  speedy  method  of  amicably  adjust- 
ing labor  disputes  arising  between  the  class  of  employers  and  em- 
ployees to  which  it  applies." 

By  act  of  March  4,  1911,  36  Stat.  1397,  Fed.  Stat.  Ann.  Supp. 
1912,  p.  260,  it  is  provided :  "The  President  of  the  United 
States  from  and  after  the  passage  of  this  act  is  authorized  to 
designate  from  time  to  time  any  member  of  the  Interstate  Com- 
merce Commission  by  the  provisions  of  the  'act  concerning  car- 
riers engaged  in  interstate  commerce  and  their  employees,'  ap- 
proved June  first,  eighteen  hundred  and  ninety-eight ;  and  the 
member  so  designated,  during  the  period  for  which  he  designated, 
shall  have  the  powers  now  conferred  by  said  act  on  the  chairman 
of  the  Interstate  Commerce  Commission." 

The  Erdman  Act  was  repealed  by  the  more  comprehensive  act 
of  July  15,  1913.2" 

§  334.  Breaking  Seals  of  Railroad  Cars  Containing-  In- 
terstate or  Foreign  Shipments. — By  act  of  Feb.  13,  1913,  it 
was  made  a  crime  unlawfully  to  break  the  seal  of  any  railroad 
car  containing  interstate  or  foreign  shipments  of  freight  or  ex- 
press, or  to  enter  such  car  with  intent  to  commit  larceny  therein, 
or  to  steal,  unlawfully  take,  carry  away  or  conceal  goods  or  chat- 
tels moving  as  interstate  freight,  or  to  buy  or  receive  such  when 
unlawfully  taken  by  another.-^ 

''Re   Southern   Pacific   Co.,   155  ""  Act   Feb.    13,    1913,    37    Stat. 

Fed.  1001.  670,  chap.  50,  Fed.  Stat.  Ann.  1914 

"Act  July  15,  1913,  38  Stat.  103,  Supp.     203,      Appendix     M.       See 

chap.    6,     Fed.     Stat.    Ann.     1911  also  Train   Robbery  Act,  July  1, 

Supp.    p.    244;    Appendix    L.      Su-  1902,    62    Stat.    727;    chap.    1376; 

perceding   Act    Note   25,   supra.  Fed.  Stat.  Ann.,  vol.  6,  p.  758.    , 


CHAPTER  IX. 

ACTS   REGULATING    COMMERCE. 

Including  act  approved  February  4,  1S8~,  chapter  104,  effective  April 
5,  1887,  24  Stat.  L.  379,  U.  S.  Comp.  Stat.  1901,  p.  3154,  3  Fed.  Stat. 
Ann.  809,  et.  seq.     Known  as  the  Cullom  Act. 

Amendment  of  March  2,  1889,  25  Stat.  L.  855,  Chap.  382,  U.  S.  Comp. 
Stat.  1901,  p.  3158,  3  Fed.  Stat.  Ann.  852,  et.  seq. 

Amendment  of  February  10,  1891,  Chapter  128,  26  Stat.  L.  753,  U. 
S.   Comp.  Stat.  1901,  p.  3163,  3  Fed.  Stat.  Ann.  839. 

Amendment  of  February  8,  1895,  Chap.  61,  28  Stat.  L.  643,  U.  S. 
Comp.  Stat.  1901,  p.  3171,  3  Fed.  Stat.  Ann.  851. 

Act  February  11,  1893,  27  Stat.  L.  443,  Chap  83,  U.  S.  Comp.  Stat. 
1901,  p.  3173,  3  Fed.  Stat.  Ann.  855.     Known  as  the  Testimony  Act. 

Act  February  11,  1903,  Chapter  544,  32  Stat.  L.  823,  U.  S.  Comp. 
Stat.  Supp.  1907,  10  Fed.  Stat.  Ann.  199.  Known  as  the  Expediting 
Act. 

Act  February  19,  1903,  Chap.  708,  32  Stat.  L.  847,  U.  S.  Comp.  Stat. 
Supp.  1907,  p.  880,  10  Fed.  Stat.  Ann.  170.     Known  as  the  Elkins  Act. 

Act  February  25,  1903,  Chap.  755,  32  Stat.  L.^903,  10  Fed.  Stat.  Ann. 
173,  being  section  one  of  the  Appropriation  Act. 

Act  June  29,  1906,  34  Stat.  L.  584,  Chap.  3591,  U.  S.  Comp.  Stat. 
Supp.  1907,  p.  892,  Fed.  Stat.  Ann.  Supp.  1907,  p.  167.  Known  as  the 
Hepburn  Act. 

Act  June  30,  1906,  Chap.  3920,  34  Stat.  L.  798,  U.  S.  Comp.  Stat. 
Supp.  1907,  p.  900,  Fed.  Stat.  Ann.  Supp.  1907,  p.  382. 

Act  April  13,  1908,  35  Stat.  L.  60,  Chap.  143 

Act  of  June  18,  1910,  36  Stat.  L.  539,  Chap.  309,  U.  S.  Comp.  Stat. 
Supp.   1911,  p.   1288,   Fed.   Stat.   Ann.   Supp.  1912,  pp.   Ill   to   127. 

Act  Aug.  24,  1912,  37  Stat.  L.  566,  Chap.  390,  Fed.  Stat.  Ann.  Supp. 
1914,  p.  378.     Known  as  Panama  Canal  Act. 

Act  Mch.  4,  1913,  37  Stat.  L.  1013,  Chap.  160,  Fed.  Stat.  Ann.  Supp., 
p.  226. 

Act  Mch.  1,  1913,  37  Stat.  L.'  701,  Chap.  92,  Fed.  Stat.  Ann.  Supp. 
1914,  p.   204. 

Act  Oct.  22,   1913.      Known   as   District    Court   Act. 

Government   Aided    Railroad    and    Telegraph    Lines    Act. 

Lake  Erie  and  Ohio  Ship  Canal  Act. 

Parcel   Post  Act. 

Witness   Acts. 

Act  March  4,   1915.     Known  as   Cummins   Amendment 

§  335.     Scope  of  Act  to  Regulate  Commerce. 

336.  Not  Applicable  to  Intrastate  Transportation. 

337.  Terms   "Common    Carrier,"   "Railroad,"   and   "Transportation" 

Defined. 

446 


Annotated.  447 

338.  Duty   of   Carrier   to   Furnish   Transportation   and   to   Establish 

Through  Routes. 

339.  All   Transportation    Charges    Must    Be    Reasonable. 

340.  Classification  of  Telegraph,  Telephone  and  Cable  Messages. 

341.  Classifications,  Regulations  and  Practices  Must  be  Reasonable. 

342.  Free  Service  with  Certain  Exceptions  Prohibited  and  Penalties 

Prescribed. 

343.  Railroad  Companies  Prohibited  from  Transporting  Commodi- 

ties in  Which  They  Are  Interested,  with  Certain  Exceptions. 

344.  Terms  under  Which  Switch  Connections  Shall  Be  Made. 

345.  Definition  and  Prohibition  of  Unjust  Discrimination. 

346.  Undue   and  Unreasonable   Preference   Prohibited. 

347.  Carriers  Shall  Accord  Reasonable  and  Equal  Facilities  for  In- 

terchange of  Trafific. 

348.  Rule  as  to  Long  and  Short  Hauls. 

349.  Relief  from  Long  and  Short   Haul   Clauses. 

350.  Section  Not  to  Apply  for  Six  Months. 

351.  Rates   Reduced  by   Competition  with  Water   Routes   Not  In- 

creased, When. 

352.  Pooling  of  Freights  and  Division  of  Earnings  Prohibited. 

353.  Rail  Carrier  Not  to  Own   Competing  Water  Carriers. 

354.  Whether  or  Not  Competition  Exists  to  Be  Determined  by  the 

Commission. 

355.  Commission    May   Relieve   from    Provision. 

356.  Water  Carriers  to  File  Tariffs. 

357.  Violators    of   Sherman   Anti-Trust   Act    Not   to    Use    Panama 

Canal. 

358.  Carriers  Shall  File,  Print  and  Keep  Public  Schedules  of  Rates. 

359.  Regulations  as  to  Printing  and  Posting  Schedules  of  Rates  for 

Freight    Moving  Through    Foreign    Countries    from   and   to 
Any   Place   in   the   L^nited   States. 

360.  No    Change   of   Schedules   of   Rates   Shall   Be   Made   Without 

Notice. 

361.  Names  of  All  Carriers  Parties  to  Schedules  Must  Be  Specified. 

362.  Carriers  Shall  File  Contracts  Relating  to  Trafific  Arrangements. 

363.  Commission  Maj^  Prescribe   Form  of  Schedules. 

364.  No  Carrier  Shall  Participate  in   Interstate   Commerce  Unless 

the    Charges    Therefor    are    Published,    and    No    Such    Car- 
rier Shall  Deviate  from  the  Published  Schedules. 

365.  Preference  and  Precedence  May  Be  Given  Military  Trafific  in 

Time   of  War. 

366.  The   Commission   May  Reject  Schedules. 

367.  Penalty  for  Failure  to  Comply  with  Orders  under  Section  Six. 

368.  Penalty  for  Misstating  or  Failure  to   State  Rate. 

369.  Must  Post  Name  of  Agent. 

370.  Corporations  Violating  the  Act  to  Regulate  Commerce  Guilty 

as   Individuals  and   Punishment   Prescribed. 

371.  Rebate.     Punishment  for  Offering,  Granting,  Soliciting,  or  Ac- 

cepting. 


448  Acts  Regulating  Commerce, 

372.  Act  of  Officer  or  Agent,  When  Binding. 

373.  Carrier  Filing  or  Participating  in  Rate  Bound  Thereby. 

374.  Forfeiture  for  Rebating  in  Addition  to  Penalties.     Limitation 

of  Six  Years  Fixed. 

375.  Jurisdiction  over  Water  Carriers. 

37G.     Physical  Connection  Between  Rail  Lines  and  Dock  of  Water 
Carriers. 

377.  Through   Routes    and   Joint   Rates    Between    Rail   and   Water 

Carriers. 

378.  Proportional  Rates  to  and  from  Ports. 

379.  Through  Rates  via  Panama  Canal. 

380.  Conditions    under    Which    Through    Routes    and    Joint    Rates 

with  Water  Carriers  May  Be  Operated  to  Be  Prescribed  by 
the    Commission. 

381.  Contracts  and  Combinations  to  Prevent  Continuous  Carriage 

of  Freight  Prohibited. 

382.  Damages  and  Attorneys'  Fees  Allowed  for  Violations. 

383.  Where  to  Sue  for  Damages,  Compulsory  Attendance  of  Wit- 

nesses and  Production  of  Papers. 

384.  Penalties  for  Violations  of  the  Act. 

385.  Penalties  for  False  Billing,  False  Classification,  False  Weigh- 

ing,  etc.,   bj''   Carriers. 

386.  Penalties  against  Shippers   for  False  Billing,  etc. 

387.  Penalties  and  Damages   for  Inducing  Discriminations. 

388.  Appointment   and   Term   of   Office   of   Commissioners. 

389.  Power   and   Duty   of    Commissioners. 

390.  Power  of  Courts  to  Punish  for  Disobedience,  Witnesses  Not 

Excused   Because   Testimony   May   Incriminate. 

391.  Right    to    Take    Testimony   by    Depositions    and    the    Manner 

Thereof   Prescribed. 

392.  Persons  Who  May  File  Complaints  with  the  Commission  and 

Practice  with  Reference  Thereto. 

393.  Commission  May  on  Its  Own  Motion  Institute  Investigations. 

394.  Reports    of    Commission    on    Investigations,    How    Made    and 

Published. 

395.  Power  of  the    Commission  to   Determine   and   Prescribe  Just 

and  Reasonable  Rates,   Regulations  and  Practices. 

396.  When   Orders  Take   Effect  and   How  Long  Continue  Unless 

Modified   or   Set   Aside   by   the   Commission. 

397.  Division  of  Joint  Rate  May  Be  Prescribed  by  Commission. 

398.  Right  to  Suspend  Proposed   Increases  in  Rates. 

399.  Burden  of  Proof  to  Justify  Rates  Increased  after  Jan.  1,  1910. 

400.  Through  Routes  and  Joint  Rates  May  Be  Established  by  the 

Commission. 

401.  Limitation  of  the  Power  to  Prescribe  Through   Routes. 

402.  Shippers  May  Designate  Routing. 

403.  Unlawful   to   Give   or   Receive   Information   Relative   to   Ship- 

ments. 


A  N  NOTATED.  449 

404.  Charges    for    Instrumentalities    Furnished    by    Shipper,    Must 

Be    Reasonable. 

405.  ■  Enumeration   of   Powers   of   Commission   Not   Exclusive. 

406.  Award    of    Damages    Shall    Be    Alade   by    Commission   after 

Hearing. 

407.  Carrier    Failing   to    Comply   with    Order   for   Reparation,    Suit 

May  Be  Brought  Thereon  in  United  States  and  State  Courts, 
the  Order  Being  Prima  Facie  Evidence  of  the  Right  to  Re- 
cover. 

408.  Limitation  on   Actions   for  Damages. 

409.  All  Parties  Jointly  Awarded  Damages  Alay  Sue  as   Plaintiffs 

Against  All  Carriers  Parties  to  the  Award. 

410.  Service  of  Orders  of  Commission. 

411.  Commission   May  Suspend  or  Modify   Its   Orders. 

412.  Punishment  for  Knowingly  Disobeying  an  Order  Issued  under 

Section   Fifteen. 

413.  District  Attorney  and  Attorney-General  to  Prosecute    Special 

Attorneys  May  Be   Employed. 

414.  Courts  May  Enforce  Obedience  to  Commission's  Order,  Man- 

datory   or    Otherwise. 

415.  Schedules,   Contracts,   etc.,   Must   Be   Filed  with   the   Commis- 

sion,  and.   When    Filed,    Original    or    Certified    Copy    Prima 
Facie  Evidence. 
41G.     Rehearings  May  Be  Granted  by  Commission. 

417.  Procedure   before   the    Commission. 

418.  Salaries  and  Expenses  of  the  Commission. 

419.  Principal  Office  of  Commission  in  Washington,  but  May  Prose- 

cute  Inquiries   Elsewhere. 

420.  The  Commission  Is  Authorized  to  Investigate,  Ascertain  and 

Report  the  Value  of  Railroad  Property. 

421.  Method  of  Procedure   to   Be   Prescribed  by  the    Commission. 

422.  How   Such    Investigation    Is    Prosecuted. 

423.  Duty   of   Carriers    to   Aid    the    Investigation. 

424.  Valuations  to  Be  Revised  and  Corrected. 

425.  Carrier   to  Make   Reports. 

426.  Notice  of  Completion  of  Valuation. 

427.  Hearings  Before  Valuation   Fixed. 

428.  Effect  of  Valuation  as  Evidence. 

429.  Applicable   to   Receivers — Penalty. 

430.  Jurisdiction  of  Courts  to  Aid. 

431.  Requirements  as  to  Transportation  of  Employees  of  the  Com- 

mission with  Supplies  Therefor. 

432.  Annual    Reports    Required    and    What    They    Shall    Contain. 

Penalties  for  Failure  to  Make. 

433.  Commission    May   Prescribe   Form   of   Keeping   Accounts   and 

Inspect  Same. 

434.  Penalties  for  Failure  to  Keep  Accounts  and  for  Falsifying  the 

Record. 

— ].") 


450  Acts  Regulating  Commerce, 

435.  The  Commission  May  Permit  the  Destruction  of  Papers. 

436.  Penalty  for  an  Examiner  Divulging  Information  Received  as 

Such. 

437.  United    States    Circuit    and    District    Courts    May,   Upon    Ap- 

plication   of   Attorney-General    at    Request    of    Commission, 
Enforce  Provisions  of  Act. 

438.  Commission   May   Employ  Agents   or   Examiners. 

439.  Receiving   Carrier   Liable   for   Loss,   Remedy   Cumulative. 

440.  Carriers  Liable  for  Full  Value  of  Property  Transported — Cum- 

mins Amendment. 

441.  Annual   Reports  by   Commission   to   Congress. 

442.  Circumstances  under  Which  Reduced  or  Free  Fares  and  Rates 

May  Be   Given. 

443.  Existing  Remedies  Not  Abridged  or  Altered.     Pending  Liti- 

gation Not  Affected. 
•444.     Interchangeable  Mileage  Tickets,  How  Issued. 

445.  Discrimination    May    Be    Prevented    by    Writ  of  Mandamus, 

Remedy  Cumulative. 

446.  Number,    Terms,    Qualification,    Salary    and    Appointment    of 

Commissioners. 

447.  Existing  Laws  as  to  Obtaining  Testimony  Applicable  to  Act. 

448.  Repealing  Conflicting  Laws  Not  to  Affect  Pending  Suits. 

449.  Time  of  Taking  Effect  of  Act. 

450.  Carriers  Must  Designate  Agents  in  Washington. 

451.  Pending  Cases   Not  Affected. 

452.  Commission   to   Investigate   Questions   Pertaining   to   Issuance 

of  Stocks  and  Bonds. 

453.  Injunctions   against   Operation   of   State   Statutes. 

454.  When  Act  Effective. 

455.  Parties  Defendant  Other  than  Carriers  in  Suit  to  Enforce  Pro- 

visions of  Act. 

456.  Equitable  Proceedings  May  Be  Instituted  by  the  Commission 

to    Restrain    Discrimination    or   Departures    from    Published 
Rates. 

457.  Immunity  and  Compulsory  Attendance  of  Witnesses,  Produc- 

tion  of  Books  and   Papers. 

458.  Expediting  Act  Applicable  to  Suits  Brought  under  Direction 

of  Attorney-General. 

459.  Repealing    Clause    Not    Affecting    Pending    Suits    or    Accrued 

Rights. 

460.  Commerce    Court. 

461.  Commerce  Court  Abolished. 

462.  Venue   of  Suits   on   Orders   of   Interstate   Commerce   Commis- 

sion. 

463.  Procedure  in  the  District  Courts. . 

464.  Temporary   Restraining   Orders. 

465.  An  Appeal  to  the  Supreme  Court  from   Interlocutor}'  Orders. 

466.  Appeals    from    Final   Judgments. 

467.  Pending   Causes   Transferred   to   District   Courts. 


§  335.]  Annotated.  451 

468.     Certain    Cases     Given    Precedence    and    Hearing    Expedited 
Hearing  Before  Three  Judges. 
■   469.     Direct   Appeal   to   Supreme    Court. 

470.  Government  Aided  Railroad  and  Telegraph   Lines. 

471.  Connecting  Telegraph  Lines. 

•   472.  Duties   Imposed   on   Interstate    Commerce   Commission. 

473.  Duty   of   the   Attorney-General. 

474.  Penalties  Provided. 

475.  Duty  of  Telegraph  and  Railroad  Companies  to  File  Contracts 

with  and   Make   Reports   to   Interstate   Commerce   Commis- 
sion. 

476.  Right  of   Congress   to  Alter  or  Annul  Act. 

477.  Lake   Erie  and   Ohio   River   Ship   Canal. 

478.  Parcel  Post.  t 

479.  Compulsory  Attendance  of  Witnesses  and  Production  of  Pa- 

pers  Provided   for. 

480.  Amendment  to   Compulsory  Attendanoe  Act. 

§  335.  Scope  of  Act  to  Regulate  Commerce. — That  the 
provisions  of  this  Act  shall  applyto  any  corporation  or  any  per- 
son or  persons  engaged  in  the  transportation  of  oil  or  other  com- 
modity, except  water  and  except  natural  or  artificial  gas,  by 
means  of  pipe  lines,  or  partly  by  pipe  lines  and  partly  by  rail- 
road, or  partly  by  pipe  lines  and  partly  by  water,  and  to  tele- 
graph, telephone,  and  cable  companies  (whether  wire  or  wireless) 
engaged  in  sending  messages  from  one  State,  Territory,  or  Dis- 
trict of  the  United  States,  to  any  other  State,  Territory,  or  Dis- 
trict of  the  United  States,  or  to  any  foreign  country,  who  shall  be 
considered  and  held  to  be  common  carriers  within  the  meaning 
and  purpose  of  this  Act.  and  to  any  common  carrier  or  carriers 
engaged  in  the  transportation  of  passengers  or  property  wholly 
by  railroad  { or  partly  by  railroad  and  partly  by  water  when 
both  are  used  under  a  common  control,  management,  or  arrange- 
ment for  a  continuous  carriage  or  shipment),  from  one  State  or 
Territory  of  the  United  States  or  the  District  of  Columbia,  to  any 
other  State  or  Territory  of  the  United  States  or  the  District  of 
Columbia,  or  from  one  place  in  a  Territory  to  another  place  in  the 
same  Territory,  or  from  any  place  in  the  United  States  to  an  ad- 
jacent foreign  country,  or  from  any  place  in  the  United  States 
through  a  foreign  country  to  any  other  place  in  the  United  States, 
and  also  to  the  transportation  in  like  manner  of  property  shipped 
from  any  place  in  the  United  States  to  a  foreign  country  and  car- 
ried from  such  place  to  a  port  of  transshipment,  or  shipped  from 


452  Acts  Regulating  Commerce,  [§  335. 

a  foreign  country  to  any  place  in  the  United  States  and  carried 
to  such  place  from  a  port  of  entry  either  in  the  United  States  or 
an  adjacent  foreign  country: 

Paragraph  one  of  section  one  of  act  to  regulate  commerce,  as 
amended  by  act  of  June  18,  1910.    The  original  act  read: 

"That  the  provisions  of  this  act  shall  apply  to  any  common 
carrier  or  carriers  engaged  in  the  transportation  of  passengers 
or  property  wholly  by  railroad,  or  partly  by  railroad  and  partly 
by  water  when  both  are  used,  under  a  common  control,  manage- 
ment or  arrangement,  for  a  continuous  carriage  or  shipment, 
from  one  State  or  Territory  of  the  United  States,  or  the  District 
of  Columbia,  to  any  other  State  or  Territory  of  the  United  States, 
or  the  District  of  Columbia,  or  from  any  place  in  the  United 
States  to  an  adjacent  foreign  country,  or  from  any  place  in  the 
United  States  through  a  foreign  country  to  any  other  place  in 
the  United  .States,  and  also  to  the  transportation  in  like  man- 
ner of  property  shipped  from 'any  place  in  the  United  States  to 
a  foreign  country  and  carried  from  such  place  to  a  port  of  trans- 
shipment, or  shipped  from  a  foreign  country  to  any  place  in  the 
United  States  and  carried  to  such  place  from  a  port  of  entry 
either  in  the  United  States  or  an  adjacent  foreign  country." 

The  act  of  June  18,  1910,  amended  the  act  of  Jifne  29th,  1906, 
by  including  "telegraph,  telephone  and  cable  companies  whether 
wire  or  wireless." 

Original  act  constitutional.  Int.  Com.  Com.  z'.  Brimson,  154 
U.  S.  447,  448,  38  L.  Ed.  1047,  14  Sup.  Ct.  1125. 

A  purely  intrastate  carrier  not  participating  in  a  through 
movement  is  not  within  the  act  because  the  ultimate  destina- 
tion of  the  traffic  may  be  beyond  the  state.  Mo.  &  111.  Rd.  Tie 
&  Lumber  Co.  v.  Cape,  etc.,  R.  Co.,  1  I.  C.  C.  30,  1  I.  C.  R.  607; 
New  Jersey  Fruit  Exp.  v.  Central  R.  Co.  of  New  Jersey,  2  I.  C. 
C.  142,  2  I.  C.  R.  84.  Express  companies  not  within  original 
act,  though  railroads  conducting  an  express  business  are.  Re 
Express  Companies,  1  I.  C.  C.  R.  349,  1  I.  C.  R.  677;  United 
States  V.  Morsman,  42  Fed.  448. 

A  state  road  owning  no  rolling  stock  but  used  as  a  means  of 
interstate  traffic  within  act.  Heck  r.  E.  T.  A'.  &  G.  R.  Co.,  1 
I.  C.  C.  495,  1  I.  C.  R.  775.  An  interstate  bridge  subject  to  act. 
Ky.  &  Ind.  Bridge  Co.  r.  L.  &  N.  R.  Co.,  2  I.  C.  C.  162,  2  I. 
C.  R.  102.     Order  not  enforced.     Same  style  case,  37  Fed.  567. 


§  335.]  Annotated.  453 

Commerce  between  points  in  the  state  but  passing  through  an- 
other state  in  interstate  commerce.  Xew  Orleans  Cotton  Ex- 
change V.  Cincinnati,  X.  O.  &  T.  P.  R.  Co.,  2  I.  C.  C.  375,  2  I. 
C.  R.  289;  Milk  Producers  Asso.  v.  Delaware  etc.  R.  Co.,  7  L  C. 
C.  92,  162.  Foreign  carriers  participating  in  traffic  from  points 
in  the  United  States  to  adjacent  countries  subject.  Re  Investi- 
gation Acts  Grand  Trunk  Railway  of  Canada,  3  I.  C.  C.  89,  2  I. 
C.  R.  496.  Independent  water  lines  not  subject.  New  Orleans 
Cotton  Exchange  r.  111.  Cent.  R.  Co.,  3  I.  C.  C.  534,  562,  2  I.  C. 
R.  777. 

When  a  state  carrier  engages  in  interstate  commerce  it  be- 
comes subject  to  the  act.  !Mattingly  z'.  Penn.  Co.,  3  I.  C.  C.  592, 
2  I.  C.  R.  806.  State  steamboat  not  within  act.  Capehart  & 
Smith  v.  L.  &  X.  R.  Co.,  4  I.  C.  C.  265,  3  I.  C.  R.  278.  "Com- 
mon control,  management  or  arrangement"  defined.  Boston 
Fruit  &  Produce  Exchange  z'.  Xew  York  and  X"ew  England  Co., 
4  I.  C.  C.  664,  3  I.  C.  R.  493.  See  same  case,  5  I.  C.  C. 
1,  3  I.  C.  R.  604.  See  also  Trammel  Railroad  Commission  of 
Ga.  V.  Clyde  Steamship  Company,  5  I.  C.  C.  324,  4  I.  C.  R.  120. 
All  roads,  including  purely  state  roads,  participating  in  an  in- 
terstate haul  subject  to  act.  James  and  Mayer  Buggy  Company 
V.  Cincinnati,  X.  O.  &  T.  P.  R.  Co.,  4  I.  C.  C.  744,  3  I.  C.  R.  682. 
Order  not  enforced  in  circuit  but  was  enforced  in  Supreme  Court. 
Int.  Com.  Com.  z:  Cincinnati,  X.  O.  &  T.  P.  R.  Co.,  56  Fed.  925, 
162  U.  S.  184,  40  L.  Ed.  935,  16  Sup.  Ct.  700.  Same  rule  when 
all  water  carrier  joins.  R.  R.  Com.  of  Florida  v.  Savannah,  Fla. 
&  W.  R.  Co.,  5  I.  C.  C.  13,  136,  3  I.  C.  R.  688,  750.  Order  not 
enforced.  Savannah,  F.  &  W.  R.  Co.  z'.  Florida  Fruit  Exchange, 
167  U.  S.  512,  42  L.  Ed.  257,  17  Sup.  Ct.  998.  The  charter  of 
the  Northern  Pacific  Railroad  Company  does  not  exempt  it  from 
control  of  act.  Raworth  v.  N.  Pac.  R.  Co.,  5  I.  C.  C.  234,  3  I.  C. 
R.  857.  Merchants  Union  of  Spokane  Falls  v.  N.  Pac.  R.  Co.,  5 
I.  C.  C.  478,  4  I.  C.  R.  183.  Order  not  enforced.  Farmers'  L. 
&  T.  Co.  V.  N.  Pac.  R.  Co.,  83  Fed.  249.  Receivers  of-  railroad 
companies  subject  to  act.  Independent  Refiners  Asso.  v.  W.  N.  Y. 
&  Penn.  R.  Co.,  6  I.  C.  C.  378,  386.  Order  not  enforced.  W.  N. 
Y.  &  P.  R.  Co.  z'.  Penn.  Refining  Co.,  137  Fed.  343,  70  C.  C.  A. 
23.  Affirmed,  208  U.  S.  208,  52  L.  Ed.  456,  28  Sup.  Ct.  268. 
Electric  Railway  partly  in  ^Maryland  and  party  in  District  of 
Columbia  subject  to  act.    Wilson  v.  Rock  Creek  Ry.  Co.,  7  I.  C. 


454  Acts  Regulating  Commerce,  [§  335. 

C.  83.  Does  not  apply  to  transportation  by  wagon.  Cary  v.  Eu- 
reka Springs  Ry.  Co.,  7  I.  C.  C.  286.  Stock  Yards  Terminal 
Road  at  Chicago  not  a  common  carrier.  Cattle  Raisers  Asso.  of 
Texas  v.  Ft.  Worth  &  D.  C.  Ry.  Co.,  7  I.  C.  C.  513,  555-a.  Order 
not  enforced.  Int.  Com.  Com.  v.  C.  B.  &  Q.  R.  Co.,  98  Fed.  173, 
103  Fed.  249,  43  C.  C.  A.  209,  186  U.  S.  320,  46  L.  Ed.  1182,  22 
Sup.  Ct.  824.  Import  and  export  traffic  over  rail  carriers  within 
jurisdiction.  Ocean  carriers  not.  Kemble  v.  Boston  &  A.  R.  Co., 
8  I.  C.  C.  110,  119.  The  determinating  features  of  a  through 
shipment  is  the  contract.  Matter  of  Alleged  Unlawful  Rates  and 
Practices  in  Transportation  of  Cotton,  8  I.  C.  C.  121.  Within 
act  when  engaged  with  other  carriers  in  through  transportation. 
Alleged  A'iolation  of  Act  by  St.  L.  &  S.  F.  Ry.  Co.,  8  I.  C.  C. 
290;  Penn.  ^lillers  Asso.  v.  Philadelphia  &  R.  Ry.  Co.,  8  I.  C.  C. 
531,  549.  Applies  on  a  movement  from  Canada  to  United  States, 
Cist.  V.  Mich.  Cent.  R.  Co.,  10  I.  C.  C.  217.  Shipment  from  one 
to  another  local  point  even  though  there  may  be  an  intention 
thereafter  to  ship  to  another  and  an  interstate  point  is  entitled  to 
the  local  rate.  Hope  Cotton  Oil  Co.  v.  Tex.  &  Pac.  Ry.  Co.,  10 
I.  C.  C.  696,  703.  After  a  car  has  arrived  at  its  destination  a 
subsequently  contracted  for  switching  movement  to  another  place 
in  the  same  city  and  state  is  not  within  the  act.  St.  Loiiis  Hay 
and  Grain  Company  v.  Chicago,  B.  &  O.  R.  Co.,  11  I.  C.  C.  82. 
Refrigeration  charges  within  act.  Re  Charges  for  Transportation 
and  Refrigeration  of  Fruit,  11  I.  C.  C.  129.  Stage  line  over 
which  part  of  a  through  movement  is  had  not  within  act.  Wylie 
V.  X.  Pac.  Ry.  Co.,  11  I.  C.  C.  145.  Baggage  transfer  not  within 
act.  Re  Exchange  of  Free  Transportation,  12  I.  C.  C.  39.  A 
ferry  transport  joining  in  a  through  route  and  joint  rate  is  within 
act.  Enterprise  Transportation  Co.  v.  Penn.  R.  Co.,  12  I.  C.  C. 
326,  335,  336.  While  a  shipment  to  a  local  point  with  intention 
thereafter  to  make  a  new  contract  for  shipment  to  an  interstate 
point  is  not  within  the  act,  the  carrier  must  not  act  as  agent  of 
the  shipper  in  making  the  reconsignment.  Morgan  v.  !M.  K.  & 
T.  Ry.  Co.,  12  I.  C.  C.  }>2'b.  Xo  distinction  between  electric  and 
steam  roads.  Chicago  &  INI.  Electric  R.  Co.  v.  111.  Cent.  R.  Co., 
13  I.  C.  C.  20.  Xo  jurisdiction  over  shipments  from  ports  of 
United  States  to  a  foreign  country  not  adjacent  to  this  country. 
Cosmopolitan  Shipping  Co.  v.  Hamburg  Am.  Packet  Co.,  13  I. 
C.  C.  266,  272,  273,  274;  Lvkes  S.  S.  Line  v.  Commercial  Union, 


§  335.]  Annotated.  455 

13  I.  C.  C.  310.  Interstate  movement  regarded  as  an  entirety 
and  all  carriers  participating  therein  are  subject  to  the  act.  Sub- 
ject fully  discussed  and  cases  cited.  Leonard  v.  Kansas  City  S. 
Ry.  Co.,  13  I.  C.  C.  'b72>.  A  terminal  company  owned  by  the 
same  interests  as  a  railroad  within  act.  "Railroad"  includes  de- 
pots, yards  and  grounds.  Eichenberg  v.  So.  Pac.  Co.,  14  I.  C.  C. 
R.  250.  Order  not  enjoined.  So.  Pac.  T.  Co.  v.  Int.  Com.  Com., 
166  Fed.  134.  Interstate  carriers  by  water  are  subject  to  act 
only  in  respect  to  traffic  transported  under  a  common  control, 
management  or  arrangement  with  a  rail  carrier.  With  respect 
to  other  traffic  such  water  carriers  are  exempt  from  the  provi- 
sions of  the  act.  Re  Jurisdiction  Over  Water  Carriers,  15  I.  C. 
C.  205.  Switching  not  within  act.  Chicago,  ^I.  &  St.  P.  Ry.  Co. 
V.  Becker,  32  Fed.  849.  Water  carrier  from  one  state  to  another 
not  joining  in  a  through  bill  of  lading  with  rail  carriers  not  sub- 
ject to  act.  Terms  of  section  defined.  Ex  parte  Koehler,  30  Fed. 
867.  A  bridge  crossing  a  stream  from  one  state  to  another  which 
is  leased  to  a  railroad  is  not  a  common  carrier.  Ky.  &  Ind.  Bridge 
Co.  V.  L.  &  N.  R.  Co..  37  Fed.  567.  A  shipment  from  one  to 
another  point  in  a  state  and  which  was  immediately  reshipped  by 
the  agent  of  consignor  to  a  point  without  the  state  within  section. 
Cutting  V.  Fla.  Ry.  &  Nav.  Co.,  46  Fed.  641.  A  state  road  by 
joining  in  a  contract  for  through  traffic  becomes  subject  to  the 
act  to  regulate  commerce.  Augusta  S.  R.  Co.  v.  Wrightsville  & 
T.  R.  Co.,  74  Fed.  522;  United  States  v.  Seaboard  Ry.  Co.,  82 
Fed.  563 ;  Interstate  Stock  Yards  Co.  v.  Indianapolis  U.  Ry.  Co., 
99  Fed.  472;  Cassatt  v.  Mitchell  Coal  &  Coke  Co.,  150  Fed.  32, 
81  C.  C.  A.  80,  10  L.  R.  A.  (N.  S.)  99;  Mitchell  Coal  &  Coke 
Co.  V.  Cassatt,  207  U.  S.  181,  187,  52  L.  Ed.  160,  163,  28  Sup.  Ct. 
108,  110;  U.  S.  V.  New  York,  C.  &  H.  R.  R.  Co.,  153  Fed.  630. 
Affirmed,  New  York  C.  &  H.  R.  R.  Co.,  212  U.  S.  481,  500,  53  L. 
Ed.  613,  29  Sup.  Ct.  304;  United  States  v.  Standard  Oil  Co.,  155 
Fed.  305.  Reversed  on  another  ground.  Standard  Oil  Co.  v.  U. 
S.,  164  Fed.  376,  90  C.  C.  A.  364.  United  States  v.  Union  Stock 
Yards  Co.  of  Omaha,  161  Fed.  919;  United  States  v.  Sioux  City 
Stock  Yards,  162  Fed.  556.  If  the  state  carrier  received  no 
freight  on  nor  issues  through  bills  of  lading  it  is  not  subject.  Int. 
Com.  Com.  v.  Bellaire  Z.  &  C.  Ry.  Co.,  77  Fed.  942;  United 
States  V.  Chicago,  K.  &  S.  R.  Co.,  81  Fed.  783;  United  States  v. 
Geddes,  131  Fed.  452,  65  C.  C.  A.  320:  State  of  Iowa  v.  Chicago, 


456  Acts  Regulating  Commerce,  [§  335. 

M.  &  St.  P.  Ry.  Co.,  33  Fed.  391,  145  U.  S.  632,  36  L.  Ed.  857, 
12  Sup.  Ct.  978.  Transportation  from  one  point  to  another  in 
the  same  state,  though  passing  through  another  state,  is  not  in- 
terstate commerce.  United  States  v.  Lehigh  Valley  R.  Co.,  115 
Fed.  Z72) ;  Lehigh  A^alley  R.  Co.  v.  Pennsylvania,  145  U.  S.  192, 
36  L.  Ed.  672,  12  Sup.  Ct.  806.  Contra  United  States  v.  Dela- 
ware, L.  &  W.  R.  Co.,  152  Fed.  269,  citing  Hanley  v.  Kansas  City, 
etc.,  R.  Co.,  187  U.  S.  617,  47  L.  Ed.  2>Z?>,  23  Sup.  Ct.  214;  Lord 
V.  Goodall  N.  &  P.  Steamship  Co.,  102  U.  S.  541,  26  L.  Ed.  224; 
Pacific  Coast  S.  S.  Co.  v.  Railroad  Comrs.,  9  Sawy.  253,  18  Fed. 
10.  Hanley  v.  R.  R.,  supra,  definitely  settles  the  question  that 
such  transportation  is  interstate  commerce.  Private  car  com- 
panies, furnishing  their  cars  indiscriminately  to  carriers  subject 
to  act.    Int.  Com.  Com.  v.  Reichmann,  145  Fed.  235. 

The  test  of  subjection  to  the  act  is  through  routing  in  inter- 
state commerce.  United  States  v.  A\'ood,  145  Fed.  405,  411. 
All  carriers  engaged  in  transporting  interstate  freight  by  a  con- 
tinuous passage  are  within  the  regulation  of  interstate  commerce 
by  Congress.  United  States  v.  Colorado  and  N.  W.  R.  Co.,  157 
Fed.  321,  85  C.  C.  A.  27;  same  style,  157  Fed.  342,  85  C.  C.  A. 
48.  Phillips,  district  judge,  dissenting  in  an  able  opinion.  Chi- 
cago, B.  &  Q.  R.  Co.  V.  United  States,  157  Fed.  830,  85  C.  C.  A. 
194. 

A  water  carrier  operating  entirely  within  a  state  but  engaged 
in  transporting  interstate  commerce  is  subject  to  regulation  by 
Congress.  The  steamer  Daniel  Ball,  10  Wall,  77  \j.  S.  557,  19 
L.  Ed.  999.  Exportation  begins  when  goods  are  committed  to  a, 
common  carrier  for  transportation  beyond  the  state.  Coe  v. 
Errol,  116  U.  S.  517,  29  L.  Ed.  715,  6  Sup.  Ct.  475.  A  local  car- 
rier transporting  interstate  commerce  under  through  bills  of  lad- 
ing is  engaged  in  interstate  commerce.  Cincinnati,  Xew  Orleans 
&  T.  P.  Ry.  Co.  V.  Int.  Com.  Com.,  162  U.  S.  184,  40  L.  Ed.  935, 
16  Sup.  Ct.  700.  For  Commission  decision  see  James  &  Mayer 
Buggy  Co.  V.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.,  4  I.  C.  C. 
744,  2  I.  C.  R.  625,  3  id.  682,  Circuit  Court,  56  Fed.  925,  Cir- 
cuit Court  of  Appeals,  64  Fed.  981,  13  U.  S.  App.  730.  Int. 
Com.  Com.  v.  Detroit,  G.  H.  &  M.  Ry.  Co.,  167  U.  S.  633,  42  L. 
Ed.  306,  17  Sup.  Ct.  986.  Affirming,  74  Fed.  803,  21  C.  C.  A. 
103.  Norfolk  &  W.  R.  Co.  v.  Penn.,  136  U.  S.  114,  34  L.  Ed.  394, 
10  Sup.  Ct.  958;  United  States  v.  Wood,  145  Fed.  405;  United 


§  335.]  Annotated.  457 

States  V.  New  York  C.  &  H.  R.  R.  Co.,  153  Fed.  630,  632. 
Through  transportation  without  through  bills  of  lading  make  in- 
terstate commerce  subject  to  the  act.  United  States  v.  Colorado 
and  N.  W.  R.  Co.,  157  Fed.  321,  and  cases  cited.  Railroads 
that  share  in  an  agreed  interstate  rate  subject  to  act.  L.  &  N.  R. 
Co.  V.  Behlmer,  175  U.  S.  648,  44  L.  Ed.  309,  20  Sup.  Ct.  209. 
See  same  case  6  I.  C.  C.  257,  4  I.  C.  R.  520,  71  Fed.  835,  83  Fed. 
898,  28  C.  C.  A.  229,  42  U.  S.  App.  581.  Mere  intention  to  con- 
tinue the  transportation  of  an  interstate  shipment  after  it  reaches 
its  destination  to  another  point  in  the  same  state  as  such  destina- 
tion will  not  make  the  last  shipment  interstate.  Gulf,  etc.,  R.  Co. 
V.  Texas,  204  U.  S.  403,  51  L.  Ed.  540,  27  Sup.  Ct.  360.  Ex- 
press companies  under  the  amendment  of  June  29,  1906,  included. 
United  States  v.  Wells  Fargo  Exp.  Co.,  161  Fed.  606.  American 
Exp.  Co.  v.  United  States,  212  U.  S.  522,  53  L.  Ed.  635,  29  Sup. 
Ct.  315. 

Notes  of  Decisions  Rendered  Since  1909. 

"Wholly  by  Railroad"  discussed,  Federal  Sugar  Refinery  Com- 
pany V.  B.  &'o.  R.  Co.,  17  I.  C.  C.  40,  46,  20  I.  C.  C.  200,  Opin. 
of  Com.  Ct.  Baltimore  &  O.  R.  Co.  v.  U.  S.,  200  Fed.  779,  Opin- 
ion Com.  Court  No.  38,  page  499;  for  a  related  case  see  Amer- 
ican Sugar  Ref.  Co.  v.  Delaware,  L.  &  W.  Ry.  Co.,  200  Fed.  652. 
Same  styled  case,  207  Fed.  733,  125  C.  C.  A.  251.  Commerce  Court 
sustained.  U.  S.  v.  B.  &  O.  R.  Co.,  231  U.  S.  274,  58  L.  Ed.  218, 
34  Sup.  Court  75,  known  as  Sugar  Lighterage  Case. 

The  provisions  of  the  Act  of  June  18,  1910  stated ;  Shoemaker 
•V.  C.  &  P.  Telephone  Co.,  20  I.  C.  C.  614.  Section  quoted  in  its 
application  to  pipe  lines,  Re  Pipe  Lines,  24  L  C.  C.  1 ;  order  of 
Int.  Com.  Com.  enjoined ;  Prairie  Oil  &  Gas  Co.  v.  United  States, 
204  Fed.  798,  Com.  Court  Nos.  75  to  80,  p.  545,  Com.  Court  re- 
versed in  part;  U.  S.  v.  Ohio  Oil  Co.,  234  U.  S.  548,  58  of  L. 
Ed.  1394,  34  Sup.  Ct.  956.  State  rates  not  to  be  used  in  inter- 
state shipments.  Kanotex  Refinery  Co.  v.  A.  T.  &  S.  F.  R.  Co., 
34  L  C.  C.  271.  Applies  to  rate  in  Alaska.  Int.  Com.  Com.  v. 
U.  S.  ex  rel.  Humbolt  S.  S.  Co.,  224  U.  S.  474,  56  L.  Ed.  849,  32 
Sup.  Ct.  556 ;  reversing  the  Int.  Com.  Com.  in  Re  Jurisdiction  in 
Alaska,  19  I.  C.  C.  81,  and  affirming  U.  S.  ex  rel.  Humbolt  S.  S. 
Co.  i>.  Int.  Com.  Com.,  39  Wash.  Law  Rep.  386.  Jurisdiction 
over  Canadian  Railroads  discussed  but  not  determined.  Rates  on 
High  Explosives,  33  I.  C.  C.  567.    May  require  carriers  in  United 


458  Acts  Regulating  Commerce,  [§  336. 

States  to  cease  from  concurring  in  joint  rates  with  Canadian 
lines.  International  Paper  Co.  v.  D.  &  H.  Co.,  2>Z  I.  C.  C.  270. 
Jurisdiction  over  Cable  Companies.  White  v.  W.  U.  Tel.  Co.,  33 
I.  C.  C.  500.  Whether  or  not  a  shipment  of  freight  is  within  the 
provision  of  the  act  must  be  determined  by  "the  essential  char- 
acter of  the  commerce,  not  its  mere  accidents."  Tex.  &  N.  O.  R. 
Co.  V.  Sabine  Tram  Co.,  227  U.  S.  Ill,  129,  130,  57  L.  Ed.  442, 
449,  2>?>  Sup.  Ct.  229,  234.  Citing,  Coe  v.  Errol,  116  U.  S.  517, 
29  L.  Ed.  715,  6  Sup.  Ct.  475 ;  So.  Pac.  Terminal  Co.  v.  Int.  Com. 
Com.,  219  U.  S.  498,  55  L.  Ed.  310,  31  Sup.  Ct.  279;  Railroad 
Com.  of  Ohio  V.  Worthington,  225  U.  S.  101,  56  T.  Ed.  1004,  32 
Sup.  Ct.  653;  State  v.  Southern  Kan.  Ry.  Co.,  49  S.  W.  252; 
State  V.  International  &  Gt.  Nor.  R.  Co.,  71  S.  W.  994;  Gulf,  C. 
&-  S.  F.  Ry.  Co.  V.  Fort  Grain  Co.,  72  S.  W.  419;  Same  v.  Same, 
72>  S.  W.  845,  and  distinguishing  Gulf  C.  &  S.  F.  Ry.  Co.  v. 
Texas,  204  U.  S.  403,  51  L.  Ed.  540,  27  Sup.  Ct.  360.  But  see 
Chicago  M.  &  St.  P.  R.  Co.  v.  Iowa,  233  U.  S.  334,  58  L.  Ed. 
988,  34  Sup.  Ct.  592. 

§  336.  Not  Applicable  to  Intrastate  Transportation. — 
Provided,  Jiozcez'er,  That  the  provisions  of  this  Act  shall  not 
apply  to  the  transportation  of  passengers  or  property,  or  to  the 
receiving,  delivering,  storage,  or  handling  of  property  wholly 
within  one  State  and  not  shipped  to  or  from  a  foreign  country 
from  or  to  any  State  or  Territory  as  aforesaid,  nor  shall  they 
apply  to  the  transmission  of  messages  by  telephone,  telegraph,  or 
cable  wholly  within  one  State  and  not  transmitted  to  or  from  a 
foreign  country  from  or  to  any  State  or  Territory  as  aforesaid. 

Proviso  as  amended  by  Act  June  18,  1910. 

The  proviso  to  paragraph  one,  section  one,  as  originally  en- 
acted, read : 

Provided,  however,  that  the  provisions  of  this  act  shall  not  ap- 
ply to  the  transportation  of  passengers  or  property,  or  to  the  re- 
ceiving, delivering,  storage,  or  handling  of  property  wholly  within 
one  state  and  not  shipped  to  or  from  a  foreign  country  from  or 
to  any  state  as  aforesaid.  For  annotations,  see  next  preceding 
section. 

Notes  of  Decisions  Rendered  Since  1909. 

This  proviso  does  not  prevent  granting  relief  under  Sec.  3 
of  Act,  although  the  discrimination  is  caused  by  a  state  made  in- 
trastate rate.     Railroad  Com.  of  La.  v.  St.  L.  S.  W.  Rv.  Co. 


§  337.]  Annotated.  459 

(Shreveport  case),  23  I.  C.  C.  31;  order  sustained  Texas  &  P. 
Ry.  Co.  V.  United  States,  Houston  E.  &  W.  T.  Ry.  Co.  v.  Same, 
205  Fed.  380,  391,  Com.  Ct.  No.  68,  p.  655;  Com.  Ct.  affirmed, 
Houston  E.  &  W.  T.  Ry.  Co.  v.  U.  S.,  234  U.  S.  342,  58  L.  Ed. 
1341,  34  Sup.  Ct.  833.  State  Rates  not  the  Measure  of  Interstate 
Rates.  Corp.  Com.  of  Okla.  v.  A.  T.  &  S.  F.  R.  Co.,  31  I. 
C.  C.  532;  Trier  v.  C.  St.  P.  M.  &  O.  R.  Co.,  30  I.  C. 
C.  352.  Rates  on  Beer,  31  I.  C.  C.  544.  Rates  on  Live  Poultry, 
32  I.  C.  C.  380,  but  see  Western  Rate  Advance  case  1915,  35  I. 
■C.  C.  497.  A  terminal  company  part  of  a  railroad  and  steam- 
ship system  not  excluded  from  the  jurisdiction  of  the  Commis- 
sion by  this  proviso.  So.  Pacific  Terminal  Co.  v.  Int.  Com.  Com., 
219  U.  S.  498,  55  L.  Ed.  310,  31  Sup.  Ct.  279.  Same  styled  case, 
166  Fed.  134,  sustaining  the  Commission  in  Eichenberg  v.  So. 
Pac.  Co.,  14  I.  C.  C.  250.  See  Texas  &  No.  R.  Co.  v.  Sabine 
Tram  Co.,  supra,  Sec.  335  together  with  cases  cited  and  discussed 
in  that  case,  and  Chicago  M.  &  St.  P.  R.  Co.  v.  Iowa,  also  cited 
in  Sec.  335. 

§  337.  Terms  "Common  Carrier,"  "Railroad,"  and 
"Transportation"  Defined. — The  term  "common  carrier"  as 
used  in  this  act  shall  include  express  companies  and  sleeping  car 
companies.  The  term  "railroad"  as  used  in  this  act,  shall  include 
all  bridges  and  ferries  used  or  operated  in  connection  with  any 
railroads,  and  also  all  the  road  in  use  by  any  corporation  operat- 
ing a  railroad,  whether  owned  or  operated  under  a  contract, 
agreement  or  lease,  and  shall  also  include  all  switches,  spurs, 
tracks  and  terminal  facilities  of  every  kind  used  or  necessary  in 
the  transportation  of  the  persons  or  property  designated  herein, 
and  also  all  freight  depots,  yards,  and  grounds  used  or  necessary 
in  the  transportation  or  delivery  of  any  of  said  property ;  and  the 
term  "transportation"  shall  include  cars  and  other  vehicles  and 
all  instrumentalities  and  facilities,  of  shipment  or  carriage,  ir- 
respective of  owfiership  or  of  any  contract,  express  or  implied, 
for  the  use  thereof  and  all  service  in  connection  with  the  receipt, 
delivery,  elevation,  and  transfer  in  transit,  ventilation,  refrigera- 
tion or  icing,  storage,  and  handling  of  property  transported. 

Paragra])h  two,  section  one,  of  act  as  amended  by  act  of  June 
29,  1906.    The  paragraph  of  the  original  act  read : 

"The  term  'railroad'  as  used  in  this  act  shall  include  all  l)ridges 
and  ferries  used  or  operated  in  connection  with  any  railroad,  and 
also  all  the  road  in  use  by  any  corporation  operating  a  railroad. 


460  Acts  Regulating  Commerce,  [§  337, 

whether  owned  or  operated  under  a  contract,  agreement,  or 
lease ;  and  the  term  'transportation'  shall  include  all  instrumen- 
talities of  shipment  or  carriage." 

A  privately  owned  stock  car  not  a  common  carrier.  Burton 
Stock  Car  Co.  v.  Chicago,  B.  &  Q.  R.  Co.,  1  I.  C.  C.  132,  1  I.  C. 
R.  329,  353.  Express  companies  not  included  in  original  act. 
Re  Express  Companies,  1  I.  C.  C.  349,  369,  1  I.  C.  R.  677.  Re- 
port of  Commission  1887,  1  I.  C.  R.  650,  657.  An  interstate 
bridge  a  common  carrier.  Ky.  &  I.  Bridge  Co.  v.  L.  &  N.  R. 
Co.,  2  I.  C.  C.  162,  2  I.  C.  R.  102.  Contra  holding  the  bridge- 
company  not  a  common  carrier.  Ky.  &  I.  Bridge  Co.  v.  L.  &  N. 
R.  Co.,  37  Fed.  567.  A  stock  yards  terminal  road  not  a  common 
carrier.  Cattle  Raisers  Asso.  v.  Ft.  W.  &.  D.  C.  Ry.  Co.,  7  I.  C. 
C.  513,  555-a.  Order  not  enforced.  Int.  Com.  Com.  v.  Chicago, 
B,  &  Q.  R.  Co.,  98  Fed.  173,  103  Fed.  249,  43  C.  C.  A.  209,  186 
U.  S.  320,  46  L.  Ed.  1182,  22  Sup.  Ct.  824.  Stage  line  not  a  com- 
mon carrier  within  meaning  of  this  act.  Wylie  v.  N.  Pac.  Ry. 
Co.,  11  I.  C.  C.  145.  Baggage  company  not  within  act,  and  "com- 
mon carrier"  means  a  carrier  subject  to  the  act.  Re  Right  of  R. 
R.  Co's.  to  Exchange  Free  Transportation  with  Local  Transfer 
Co's.,  12  I.  C.  C.  39.  A  ferry  transportation  company  entering 
into  a  through  transportation  arrangement  is  a  common  carrier. 
Enterprise  Trans.  Co.  v,  Penn.  R.  Co.,  12  I.  C.  C.  326,  335. 
"Railroad"  defined.  Eichenberg  v.  So.  Pac.  Co.,  14  I.  C.  C.  250. 
"Common  carrier"  defined.  United  States  v.  Sioux  City  Stock 
Yards  Co.,  162  Fed.  556. 

Notes  of  Decisions  Rendered  Since  1909. 

Applies  to  street  railways.  West  End  Imp.  Club  v.  O.  &  C.  B. 
R.  &  B.  Co.,  17  I.  C.  C.  239.  Jurisdiction  Over  Urban  Electric 
Lines,  33  I.  C.  C.  536.  Commission  held  to  be  without  jurisdic- 
tion. O.  &  C.  B.  St.  Ry.  Co.  V.  Int.  Com.  Com.,  179  Fed.  243, 
Commission  sustained  by  Com.  Ct.  Omaha  &  C.J3.  St.  Ry.  Co.  v. 
Int.  Com.  Com.,  191  Fed.  40,  Opin.  Com.  Ct.  No.  25,  p.  147;  Com. 
Ct.  &  Com.  reversed  without  passing  on  the  effect  of  the  amend- 
ment of  June  18,  1910,  passed  subsequent  to  the  action  of  the 
Commission.  Omaha  &  C.  B.  St.  Ry.  v.  Int.  Com.  Com.,  230  U. 
S.  324,  57  L.  Ed.  1501,  46  L.  R.  A.  (N.  S.)  385,  33  Sup.  Ct.  890. 
Outbound  shipment  under  a  transit  privilege  is  transportation. 
Brook-Rauch  Mill  &  Elevator  Co.  v.  St.  L.  I.  M.  &  S.  Ry.  Co., 
21  I.  C.  C.  651.    Bridge  Company  under  the  facts  stated  not  sub- 


§  338.]  Annotated.  461 

ject  to  Act.  Kansas  City  v.  K.  C.  V.  &  T.  Ry.  Co.,  24  I.  C.  C.  22. 
Elevation  connected  with  transportation  may  be  paid  for  by  the 
carriers.  Re  Elevation  Allowances,  24  I.  C.  C.  197.  For  history 
of  decisions  relating  to  elevation  see  Re  Allowances  to  Elevators 
by  Alo.  Pac,  14  I.  C.  C.  315  ;  Traffic  Bureau,  Merchants  Ex- 
change of  St.  Louis  V.  C.  B.  &  C.  R.  R.  Co.,  14  I.  C.  C.  317,  22 
I.e.  C.  496;  Peavy  &  Co.  v.  N.  Pac,  176  Fed.  409;  Int.  Com. 
Com.  V.  Dififenbaugh,  222  U.  S.  42,  56  L.  Ed.  83,  32  Sup.  Ct.  22. 
Union  P.  R.  Co.  v.  Updike  Grain  Co.,  222  U.  S.  215,  56  L.  Ed. 
171,  32  Sup.  Ct.  39,  affirming  Updike  Grain  Co.  v.  N.  P.  R.  Co., 
178  Fed.  223,  101  C.  C.  A.  583.  Meaning  of  Transportation  as 
Applied  to  Lining  Cars.  S.  W.  Mo.  Millers'  Club  v.  St.  L.  & 
S.  F.  R.  Co.,  26  I.  C.  C.  245 ;  Heating  Cars,  Protection  of  Potato 
Shipments  in  Winter,  26  I.  C.  C.  681.  A  sleeping  car  destined 
over  an  interstate  route  is  an  instrumentality  of  interstate  com- 
merce while  lying  over  at  a  junction.  Pullman  Co.  v.  Linke,  203 
Fed.  1017.  Icing  Car  Load  Shipments  within  the  act.  Cudahy 
Packing  Co.  v.  G.  W.  Ry.  Co.,  215  Fed.  93. 

Congress  has  occupied  the  field  as  to  express  companies  en- 
gaged in  interstate  commerce,  thus  excluding  the  power  of  state 
laws  to  affect.  Barrett  v.  New  York,  232  U.  S.  14,  58  L.  Ed.  483, 
34  Sup.  Ct.  203.  A  jitney  a  common  carrier.  Nolen  v.  Riech- 
man,  225  Fed.  812. 

§  338.  Duty  of  Carrier  to  Furnish  Transportation  and  to 
Establish  Through  Routes. — It  shall  be  the  duty  of  every  car- 
rier subject  to  the  provisions  of  this  act  to  provide  and  furnish 
such  transportation  upon  reasonable  request  therefor,  and  to 
establish  through  routes  and  just  and  reasonable  rates  applica- 
ble thereto ;  and  to  provide  reasonable  facilities  for  operating 
such  through  routes  and  to  make  reasonable  rules  and  regula- 
tions with  respect  to  the  exchange,  interchange,  and  return  of 
cars  used  therein,  and  for  the  operation  of  such  through  routes, 
and  providing  for  reasonable  compensation  to  those  entitled 
thereto. 

This  section  is  part  of  Par.  2  Section  1  of  the  act  amended  by 
the  act  of  as  of  June  18,  1910.  The  amendment  added  by  act 
June  29,  1906  read : 

And  it  shall  be  the  duty  of  every  carrier  subject  to  the  provi- 
sions of  this  act  to  provide  and  furnish  such  transportation  upon 
reasonable  request  therefor,  and  to  establish  through  routes  and 
just  and  reasonable  rates  applicable  thereto. 


462  Acts  Reglxating  Commerce,  [§  338. 

The  original  act  did  not  compel  or  empower  the  Commission  to 
compel  the  establishment  of  through  routes.  Chicago  &  A.  R. 
Co.  V.  Penn.  Co.,  1  I.  C.  C.  86,  1  I.  C.  R.  357 ;  Little  Rock  &  M. 
R.  Co.  V.  East  Tenn.,  \'a.  &  Ga.  R.  Co.,  3  I.  C.  C.  1,  2  I. 
C.  R.  454,  citing  English  law  and  recommending  amendments. 
Commercial  Club  of  Omaha  v.  Chicago,  Rock  I.  &  P.  Ry.  Co., 
6  I.  C.  C.  647,  677 ;  Gustin  v.  111.  Cent.  R.  Co.,  7  I.  C.  C.  376. 
And  carriers  could  make  through  routes  with  one  road  and  not 
with  others.  Capeheart  v.  L.  &  N.  R.  Co.,  4  I.  C.  C.  265,  3  I. 
C.  R.  278.  When  through  routes  are  established  they  must  be 
kept  open  to  public  use.  Consolidated  Forwarding  Co.  v.  So. 
Pac.  Co.,  9  I.  C.  C.  182.  205.  Order  enforced.  Int.  Com.  Com. 
V.  So.  Pac.  Co.,  123  Fed.  597,  132  Fed.  829.  Circuit  court  re- 
versed. 200  U.  S.  536,  50  L.  Ed.  585,  26  Sup.  Ct.  330.  See 
same  case,  10  I.  C.  C.  590.  Through  route  ordered  established. 
Cattle  Raisers  Asso.  of  Texas  v.  Galveston,  H.  &  S.  A.  Ry.  Co., 
12  I.  C.  C.  20 ;  Birmingham  Packing  Co.  v.  Tex.  &  Pac.  Ry.  Co., 
12  I.  C.  C.  29,  500;  American  National  Live  Stock  Asso.  v. 
Tex.  &  Pac.  Rv.  Co.,  12  I.  C.  C.  32;  Star  Grain  &  Lumber  Co. 
v.  A.  T.  &  S.  F.  Ry.  Co.,  14  I.  C.  C.  R.  364.  Through  routes 
and  through  rates  discussed  and  defined.  Re  Through  Routes  and 
Through  Rates.  12  I.  C.  C.  163.  Indemnity  may  be  required  of 
an  irresponsible  carrier  before  compelling  through  route  and 
joint  rate.  Enterprise  Transportation  Co.  v.  Penn.  R.  Co.,  12  I. 
C.  C.  326.  Where  a  reasonable  through  route  exists,  the  law 
does  not  require  the  Commission  to  establish  another  through 
route.  Loup  Creek  Colliery  Co.  v.  \^a.  Ry.  Co.,  12  I.  C-  C.  471 ; 
Stedman  v.  Chicago  &  N.  W.  R.  Co.,  13  I.  C.  C.  167;  Chicago  & 
M.  Elec.  R.  Co.  V.  111.  Cent.  R.  Co..  13  I.  C.  C.  20:  Cardiff  Coal 
Co.  V.  Chicago,  M.  &  St.  P.  R.  Co.,  13  I.  C.  C.  460;  Crane  R. 
Co.  V.  Philadelphia  &  R.  Ry.  Co.,  15  I.  C.  C.  248.  When  all 
parties  are  before  it,  the  Commission  will  fix  through  routes  and 
joint  rates.  Merchants  Traffic  Asso.  z'.  New  York.  N.  H.  and 
H.  R.  Co.,  13  I.  C.  C.  R.  225.  Section  cited  Enterprise  Fuel  Co. 
V.  Penn.  R.  Co.,  16  I.  C.  C.  210.  221. 

Notes  of  Decision  Rendered  Since  1909. 

See  Sections  377,  400  and  401,  post. 

Construing  the  statute  as  it  existed  prior  to  the  amendment  of 
1910  with  the  provisions  of  Sec.  3,  post,  Sec.  Z77,  and  Sec.  15. 
post  Sec.  400,  it  was  held  then  through  routes  could  not  be  es- 


§  339.]  Annotated.  463 

tablished  if  "reasonable  and  satisfactor)"  through  routes  already 
existed.  Enterprise  Fuel  Co.  v.  P.  R.'  R.  Co.,  16  I.  C.  C.  219. 
This  limitation  taken  away  by  amendment  of  1910.  Flour  City 
S.  S.  Co.  V.  L.  V.  R.  R.  Co.,  24  I.  C.  C.  179,  185.  Carriers  must 
not  discriminate  in  establishing  through  routes.  Wichita  Falls 
System  Joint  Coal  Rate  Cases,  26  I.  C.  C.  215,  222;  St.  Louis  S. 
&  P.  R.  R.  Co.  V.  P.  &  P.  N.  Ry.  Co.,  26  I.  C.  C.  226,  234,  235. 
Through  routes  established  over  interurban  lines — See  also  cases 
cited — Louisville  Board  of  Trade  v.  I.  C.  &  S.  T.  Co.,  27  I.  C. 
C.  499.  Construed  in  connection  with  a  further  provision  of  Sec. 
1  post  Sec.  402.  Huerfano  Coal  Co.  v.  C.  &  S.  E.  R.  R.  Co.,  28 
I.  C.  C.  502,  505 ;  Campbell's  Creek  Coal  Co.  v.  A.  A.  R.  R.  Co., 
29  L  C.  C.  682,  690.  Limitation  on  power  of  Commission  un- 
der act  1906.  Int.  Com.  Com.  v.  D.  L.  &  W.  R.  R.  Co.,  216  U. 
S.  531,  54  L.  Ed.  605,  30  Sup.  Ct.  415.  But  the  amendment  of 
1910  gives  the  Commission  a  discretion.  Crane  Iron  Works  v. 
U.  S.,  209  Fed.  238,  Op.  Com.  Ct.  No.  55,  p.  453 ;  Crane  Iron 
Works  V.  P.  &  R.  Ry.  Co.,  15  I.  C.  C.  248;  Crane  Iron  Works 
V.  C.  R.  R.  Co.  of  N.  J.,  17  I.  C.  C.  514;  Truckers'  Transfer  Co. 
V.  C.  &  W.  C.  Ry.  Co.,  27  I.  C.  C.  275;  and  ^lanufacturers  Ry. 
Co.  V.  St.  L.  I.  M.  &  S.  Ry.  Co.,  28  I.  C.  C.  93,  120;  Decatur 
Nav.  Co.  V.  L.  &  N.  R.  Co.,  31  I.  C.  C.  281  and  cases  cited.  Pa- 
cific Navigation  Co.  v.  So.  Pacific  Co.,  31  I.  C.  C.  472;  Port  Hu- 
ron &  Duluth  S.  S.  Co.  V.  P.  R.  Co.,  35  I.  C.  C.  475 ;  Federal 
Sugar  Refining  Co.  v.  Central  of  New  Jersey  R.  Co.,  35  I.  C. 
C.  488. 

§  339.  All  Transportation  Charges  Must  Be  Reasonable. 
— All  charges  made  for  any  service  rendered  or  to  be  rendered 
in  the  transportation  of  passengers  or  property  as  aforesaid,  or 
in  connection  therewith,  shall  be  just  and  reasonable;  and  every 
unjust  and  unreasonable  charge  for  such  service,  or  any  part 
thereof,  is  prohibited  and  declared  to  be  unlawful. 

Part  of  paragraph  three,  section  one,  as  amended  by  act  1910. 

The  old  act  read  as  follows : 

"All  charges  made  for  any  service  rendered  or  to  be  rendered 
in  the  transportation  of  passengers  or  property  as  aforesaid,  or 
in  connection  therewith,  or  for  the  receiving,  delivering,  storage, 
or  handling  of  such  property,  shall  be  reasonable  and  just;  and 
every  unjust  and  unreasonable  charge  for  such  service  is  pro- 
hibited and  declared  to  be  unlawful." 

Provision  applies  to  exceptional    charges  under    section   four. 


464  Acts  Regulating  Comme;rce,  [§  339. 

Re  Southern  Railway  &  Steamship  Asso.  (Re  Petition  of  L.  & 
N.  R.  Co.)  1  I.  C.  C.^v,  1  I.  C.  R.  278.  A  rate  might  not  violate 
this  section  yet  be  illegal  because  discriminatory.  Raymond  Z'. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  1  I.  C.  C.  230,  1  I.  C.  R.  627.  A 
carrier  should  not  make  rates  for  the  purpose  of  keeping  a  com- 
modity on  its  line.  Reynolds  v.  W.  N.  Y.  &  P.  R.  Co.,  1  I.  C. 
C.  393,  1  I.  C.  R.  685.  What  must  be  considered  in  determining 
the  reasonableness  of  a  rate.  Boston  Chamber  of  Commerce  v. 
Lake  Shore,  etc.,  R.  Co.,  1  I.  C.  C.  436,  1  I.  C.  R.  754.  An  inter- 
mediate local  rate  should  not  exceed  the  through  rate  plus  the 
local  back  to  the  intermediate  point.  Martin  v.  So.  Pac.  Co.,  2 
I.  C.  C.  1,  2  I.  C.  R.  1.  Rates  may  be  fixed  on  other  than  a  mile- 
age basis.  La  Crosse  AL  &  J.  Union  v.  Chicago,  M.  &  St.  P.  R. 
Co.,  11  L  C.  C.  629,  2  L  C.  R.  9.  All  surrounding  circumstances 
and  conditions  must  be  considered  in  determining  what  is  a 
reasonable  rate.  Bus.  ]\Ien's  Asso.  of  Minn.  v.  Chicago,  St.  P. 
&  M.  R.  Co.,  2  I.  C.  C.  52,  2  L  C.  R.  41.  Apportionment  of  rates 
between  different  parts  of  a  line  may  be  considered.  Brady  v. 
Penn.  R.  Co.,  2  L  C.  C.  131,  2  I.  C.  R.  78.  No  jurisdiction  to 
increase  rates.  Re  Chicago,  St.  P.  &  K.  C.  R.  Co.,  2  I.  C.  C. 
231,  2  I.  C.  R.  137.  Question  a  perplexing  one  involving  a  great 
variety  of  situations.  Howell  v.  N.  Y.,  L.  E.  &  W.  R.  Co.,  2  L 
C.  C.  272,  2  I.  C.  R.  162.  Excessive, rates  not  justified  even  when 
road  earns  little  more  than  operating  expenses.  New  Orleans 
Cotton  Ex.  V.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  2  I.  C.  C.  375, 
2  I.  C.  R.  289.  The  fact  that  cost  of  transportation  is  exceed- 
ingly great  by  reason  of  the  peculiar  situation  of  a  road  should 
be  considered.  Rice  v.  W.  N.  Y.  &  Penn.  R.  Co.,  2  L  C.  C.  389, 
2  I.  C.  R.  298.  Through  rates  may  be  proportionately  less  than 
local  rates.  Lippman  v.  111.  Cent.  R.  Co.,  2  L  C.  C.  R.  584,  2  L 
C.  R.  414.  Long  maintenance  of  a  rate  evidence  that  it  is 
reasonably  low.  Logan  (Northwestern  Iowa  Grain  &  Stock 
Shippers  Asso.)  v.  Chicago  &  N.  W.  R.  Co.,  2  I.  C.  C.  604;  2  I. 
C.  R.  431.  Mileage  should  be  considered.  McMorran  v.  Grand 
Trunk  R.  Co.,  3  I.  C.  C.  252,  2  I.  C.  R.  604.  Classification  of 
freight  legal.  Thurber  v.  N.  Y.  Cent.  &  H.  R.  R.  Co.,  3  I.  C.  C. 
473,  2  I.  C.  R.  742.  The  proportion  of  a  through  rate  may  be  less 
than  the  local.  New  Orleans  Cotton  Exp.  z'.  111.  Cent.  R.  Co.,  3 
I.  C.  C.  534,  2  I.  C.  R.  777.  Equitably  graduated  charges  for  like 
traffic  having  regard  to  amount  of  traffic  is  just.  Lehman  z>.  So. 
Pac.  Co.,  4  I.  C.  C.  1,  3  I.  G.  R.  80.     In  the  carriage  of  the  great 


§  339.]  Annotated.  465 

staples  which  supply  an  enormous  business  and  which  in  mar- 
ket value  and  actual  cost  of  transportation  are  among  the  cheap- 
est articles  of  commerce,  rates  yielding  moderate  profit  are  both 
justifiable  and  necessary.  Re  Alleged  Excessive  Freight  Rates 
on  Food  Products,  4  I.  C.  C.  48,  3  I.  C.  R.  93,  104;  Mayor,  etc., 
V.  A.  T.  &  S.  F.  Ry.  Co.,  9  I.  C.  C.  534;  Farmers'  etc.,  Club  v.  A. 
T.  &  S.  F.  Ry.  Co.,  12  I.  C.  C.  351,  360.  As  -a  general  rule, 
the  charge  per  ton  mile  should  decrease  with  distance.  Manu- 
facturers &  Jobbers  Union  of  Mankato  v.  Minneapolis  &  St.  L. 
R.  Co.,  4  I.  C.  C.  79,  3  I.  C.  R.  115;  Hilton  Lumber  Co.  v. 
Wilmington,  etc.,  R.  Co.,  9  I.  C.  C.  17,  31.  Commodity  rates 
legal.  New  York  Board  of  Trade  z'.  Penn.  R.  Co.,  4  I.  C. 
C.  447,  3  I.  C.  R.  417.  Order  enforced.  Int.  Com.  Com.  v.  Tex. 
&  Pac.  Ry.  Co.,  52  Fed.  187,  57  Fed.  948,  6  C.  C.  A.  653,  20  U. 
S.  App.  1,  4  I.  C.  R.  408.  Circuit  court  reversed.  Texas  &  Pac. 
Ry,  Co.  V.  Int.  Com.  Com.,.  162  U.  S.  197,  40  L.  Ed.  940,  16  Sup. 
Ct.  666.  Classification  and  group  rates  legal.  Coxe  Bros.  &  Co. 
z:  Lehigh  Valley  R.  Co.,  4  I.  C.  C.  535,  3  I.  C.  R.  460.  Order 
not  enforced.  Int.  Com.  Com.  v.  Lehigh  Valley  R.  Co.,  74  Fed. 
784.  Elements  to  be  considered  in  fixing  rates  on  perishable 
fruits.  Boston  Fruit  &  Pro.  Ex.  v.  New  York  &  N.  E.  R.  Co., 
4  I.  C.  C.  664,  3  I.  C.  R.  493,  604,  5  I.  C.  C.  R.  1.  Comparison 
with  rates  of  other  localities  not  alone  sufficient  to  show  un- 
reasonableness. Lincoln  Creamery  v.  Union  Pac.  Ry.  Co.,  5  I. 
C.  C.  156,  3  I.  C.  R.  794.  Salt  requires  a  relatively  low  rate,  but 
should  not  be  moved  at  unremunerative  rates.  Anthony  Salt  Co. 
r.  Mo.  Pac.  R.  Co.,  5  I.  C.  C.  229,  4  I.  C.  R.  33.  Rates  should 
bear  a  fair  relation  to  antecedent  cost  of  production.  Loud  v. 
S.  C.  R.  Co.,  5  I.  C.  C.  529,  4  I.  C.  R.  205.  A  local  rate  is  prima 
facie  excessive  as  part  of  a  through  rate.  Board  of  Trade  of 
Troy  V.  Ala.  M.  R.  Co.,  6  I.  C.  C.  1.  Order  not  enforced.  Int. 
Com.  Com.  v.  Ala.  M.  R.  Co.,  69  Fed.  227,  74  Fed.  715,  21  C.  C. 
A.  51,  168  U.  S.  144,  42  L.  Ed.  414,  18  Sup.  Ct.  45.  Cost  of 
service  only  one  element  in  determining  reasonableness  of  rates. 
Schumacher  Milling  Co.  v.  Chicago,  R.  I.  &  Pac.  Ry.  Co.,  6  I. 
C.  C.  61,  4  I.  C.  R.  373.  Transportation  charges  on  rival  com- 
panies or  branch  lines  are  to  be  considered  in  fixing  rates.  Mor- 
rel  z'.  U.  Pac.  Ry.  Co.,  6  I.  C.  C.  121,  4  I.  C.  R.  469,  473.  The 
value  of  comparisons  depends  upon  the  degree  of  similarity  of 
circumstances.  Freight  Bureau  of  Cincinnati  v.  Cincinnati,  N.  O. 
&  T.  P.  Ry.  Co.,  6  I.  C.  C.  195,  4  I.  C.  R.  592.     Order  not  en- 


466  Acts  Regulating  Commerce,  [§  339. 

forced.  Int.  Com.  Com.  z'.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co., 
76  Fed.  183,  167  U.  S.  479,  42  L.  Ed.  243.  17  Sup.  Ct.  896. 
There  is  no  necessary  connection  between  rates  between  the  same 
points  in  opposite  directions.  Duncan  v.  A.  T.  &  S.  F.  Ry.  Co., 
6  I.  C.  C.  85,  103,  4  I.  C.  R.  385 ;  Macloon  v.  Boston  &  M.  R. 
Co.,  9  I.  C.  C.  642.  Rates  on  steel  and  iron  equal  to  the  average 
rates  unjust,  different  cost  of  manufacturing  the  same  product, 
no  reason  for  different  rate.  Colorado  Fuel  &  Iron  Co.  v.  So. 
Pac.  Co.,  6  I.  C.  C.  488,  515.  Order  not  enforced.  So.  Pac.  Co. 
r.  Colorado  Fuel  &  Iron  Co.,  101  Fed.  779,  42  C.  C.  A.  12.  For  a 
comparison  in  rates  to  be  of  any  value  there  must  be  substantial 
similarity.  Evans  v.  U.  Pac.  Co.,  6  I.  C.  C.  520.  Rates  must 
be  relatively  as  well  as  absolutely  just.  Page  v.  Delaware,  L.  & 
W.  R.  Co.,  6  I.  C.  C.  548.  Financial  necessities  of  carrier  en- 
titled to  weight  but  not  controlling.  Jerome  Hill  Cotton  Co.  v. 
Mo.  Kan.^&  Tex.  R.  Co.,  6  I.  C.  C.  R.  601,  622.  Uniform  blanket 
rate  from  all  stations  held  unreasonable.  Milk  Producers  Pro- 
tective Asso.  V.  Delaware,  L.  &  W.  R.  Co.,  7  I.  C.  C.  92,  164. 
Distance  an  important  element  in  determining  reasonableness  of 
rates.  Freight  Bureau  of  Cincinnati  z'.  Cincinnati,  N.  O.  &  T. 
P.  Ry.  Co.,  7  I.  C.  C.  180.  Group  rates  applied  to  cities  con- 
siderable distance  apart  prima  facie  illegal.  Commercial  Club 
of  Omaha  v.  Chicago  &  N.  W.  Ry.  Co.,  7  I.  C.  C.  386.  Inter- 
state rates  are  not  required  to  conform  to  those  fixed  under 
state  laws.  Savannah  Bureau  of  Freight  &  Transportation  v. 
Charleston  &  S.  Ry.  Co.,  7  I.  C.  C.  601.  Principles  of  rate  mak- 
ing discussed.  Grain  Shippers  Asso.  of  Northwest  Iowa  v.  111. 
Cent.  R.  Co.,  8  I.  C.  C.  R.  158.  Rate  per  ton  mile  while  valuable 
is  not  controlling.  Gustin  v.  A.  T.  eS:  S.  F.  R.  Co.,  8  I.  C.  C.  277. 
A  rate  can  seldom  be  considered  "in  and  of  itself."  Tileston 
Milling  Co.  v.  N.  Pac.  Ry.  Co.,  8  I.  C.  C.  346,  361.  Basing  point 
system  of  the  south  disapproved.  Board  of  Trade  of  Hampton 
V.  N.  C.  &  St.  L.  R.  Co.,  8  I.  C.  C.  503,  521.  Order  not  en- 
forced. Int.  Com.  Com.  v.  N.  C.  &  St.  L.  R.  Co.,  120  Fed. 
934.  Storage  is  a  service  rendered  and  must  be  reasonable. 
Penn.  Millers  Asso.  v.  Philadelphia  &  R.  R.  Co.,  8  I.  C.  C.  531. 
A  rate  long  in  existence  prima  facie  reasonably  high.  Holmes 
&  Co.  V.  So.  Ry.  Co.,  8  I.  C.  C.  561.  Must  consider  all  circum- 
stances affecting  rates.  Mayor  and  Council  of  Tifton  v.  L.  &  N. 
R.  Co.,  9  1.  C.  C.  160,  179.  Reasons  for  a  general  advance  not 
sufficient  to  show  advance  on  particular  commodity  reasonable. 


§  339.]  Annotated.  467 

National  Hay  Asso.  z'.  Lake  Shore,  etc.,  Ry.  Co.,  9  I.  C.  C.  264, 
304,  305.  Order  not  enforced.  Int.  Com.  Com.  v.  Lake  Shore, 
etc.,  Ry.  Co.,  134  Fed.  942.  Cost  of  service  may  legally  produce 
a  higher  rate  on  less  than  car  load  than  on  car  load  shipments. 
Business  Men's  League  of  St.  Louis  v.  A.  T.  &  S.  F.  R.  Co.,  9  L 
C  C.  318,  358.  Transportation  is  not  controlled  by  the  law  of 
supply  and  demand  and  is  not  to  be  sold  to  the  highest  bidder. 
Re  Proposed  Advances  in  Freight  Rate,  9  L  C.  C.  382.  See 
also  discussion  of  principles  at  pp.  395,  402,  405,  413.  Presump- 
tion that  a  rate  is  reasonably  high  does  not  apply  to  a  rate  es- 
tablished by  the  Commission.  Proctor  &  Gamble  Co.  v.  Cincin- 
nati, H.  &  b.  R.  Co.,  9  I.  C.  C.  440.  Order  enforced.  Int.  Com. 
Com.  1'.  Cincinnati,  H.  &  D.  Ry.  Co.,  146  Fed.  559,  206  U.  S. 
142,  51  L.  Ed.  995,  27  Sup.  Ct.  648.  May  compare  a  rate  with  a 
less  rate  for  a  longer  haul.  Mayor,  etc.,  of  Wichita  v.  A.  T.  & 
S.  F.  R.  Co.,  9  I.  C.  C.  534,  552.  May  not  refuse  car  load  rating 
because  consignee  obtained  title  from  different  consignors. 
Buckeye  Buggy  Co.  v.  Cleveland,  etc.,  R.  Co.,  9  I.  C.  C.  620. 
Rates  may  differ  in  reverse  direction.  MacLoon  v.  Boston  & 
M.  R.  Co.,  9  I.  C.  C.  642,  citing  Duncan  v.  A.  T.  &  S.  F.  Ry. 
Co.,  6  I.  C.  C.  85,  4  I.  C.  R.  385.  ]May  require  purchase  of  tick- 
ets in  order  to  obtain  a  reduced  fare.  Cist  v.  Mich.  Cent.  R.  Co., 
10  I.  C.  C.  217.  Rate  according  to  valuation  of  fruit  unreason- 
able and  unjust.  Georgia  Peach  Growers'  Asso.  v.  Atlantic  C. 
L.  R.  Co.,  10  I.  C.  C.  255.  Can  not  distinguish  in  rates  on  com- 
modities, because  of  method  of  loading.  Glade  Coal  Co.  v.  B.  & 
O.  R.  Co.,  10  I.  C.  C.  226.  Under  the  circumstances  of  this  case, 
there  should  be  no  higher  rate  on  cattle  and  hogs  than  on  their 
products.  Chicago  Live  Stock  Exp.  z'.  Chicago  Great  W.  Ry. 
Co.,  10  I.  C.  C.  428.  Order  not  enforced.  Int.  Com.  Com.  v. 
Chicago  Great  W.  Ry.  Co.,  141  Fed.  1003.  209  U.  S.  108.  52  L. 
Ed.  705,  28  Sup.  Ct  493.  Eft'ect  of  prosperity  of  shipper,  in- 
creased cost  of  transportation,  long  continued  rate  and  a  combi- 
nation to  advance  rates  discussed.  Central  Yellow  Pine  Asso.  v. 
111.  Cent.  R.  Co.,  10  I.  C.  C.  505.  Order  enforced.  111.  Cent.  R. 
Co.  V.  Int.  Com.  Com.,  206  U.  S.  441,  51  L.  Ed.  1128,  27  Sup. 
Ct.  700.  Tift  V.  So.  R.  Co.,  10  I.  C.  C.  548,  123  Fed.  789,  138  Fed. 
753;  So.  R.  Co.  z:  Tift,  148  Fed.  1021,  206  U.  S.  428,  51  L.  Ed. 
1124,  27  Sup.  Ct.  709;  Tift  v.  So.  Ry.  Co.,  159  Fed.  555.  Eft'ert  of 
long  continuance  of  rate  and  of  financial  condition  of  carrier  con- 
sidered.  Re  Class  and  Commodity  Rates  St.  Louis  to  Texas.    111. 


468  Acts  Regulatixg  Commerce,  [§  339. 

C.  C.  R.  238.  Facts  considered  in  arriving  at  a  conclusion  as 
to  reasonableness  of  rates.  Cattle  Raisers"  Asso.  of  Texas  v.  M. 
K.  &  T.  Ry.  Co.,  11  I.  C.  C.  296.  Classification  must  have  ref- 
erence to  general  shipments  and  not  to  a  special  shipper.  Plant- 
ers Compress  Co.  v.  Cleveland,  etc.,  R.  Co.,  11  I.  C.  C.  382,  606. 
Cost  of  service  may  not  be  ignored,  but  there  are  other  matters 
of  equal  importance.  Cannon  v.  M.  &  O.  R.  Co.,  11  I.  C.  C.  537. 
"V^olume  of  traffic  an  argument  for  comparatively  low  rates.  Far- 
rar  v.  So.  Ry.  Co..  11  I.  C.  C.  632,  640.  Single  rates  should  be 
considered  as  part  of  the  whole  system.  Hastings  Malting  Co.  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  11  I.  C.  C.  R.  675.  Expense  of  deliv- 
ery should  not  increase  the  rate  more  than  such  expense.  Society 
of  American  Florists  v.  .United  States  Exp.  Co.,  12  I.  C.  C.  120. 
Existence  of  a  lower  rate  in  remote  past  no  probative  value.  En- 
terprise Mfg.  Co.  V.  Georgia  R.  Co.,  12  I.  C.  C.  130.  Distance 
can  not  be  made  the  sole  factor  in  rate  niaking.  Wilhoit  v.  M. 
K.  &  T.  Ry.  Co.,  12  I.  C.  C.  138.  Revenue  per  ton  mile  over 
other  routes  and  lines  not  conclusive.  Dallas  Freight  Bureau  v. 
Gulf,  etc.,  R.  Co.,  12  I.  C.  C.  223.  ^lere  fact  that  an  advance 
was  the  result  of  a  combination  not  sufficient  to  condemn  it. 
China  &  Japan  Trading  Co.  v.  Georgia  R.  Co.,  12  I.  C.  C.  236; 
Mayor  of  Bristol  v.  Virginia  &  S.  W.  R.  Co.,  15  I.  C.  C.  543. 
Rate  fixed  by  a  state  Commission  not  binding  on  Interstate  Com- 
merce Commission.  Hope  Cotton  Oil  Co.  v.  Texas  &  Pac.  R. 
Co.,  12  I.  C.  C.  265.  Grain  a  desirable  traffic  and  entitled  to 
low  rate.  Roswell  Commercial  Club  v.  A.  T.  &  S.  F.  Ry.  Co.,  12 
I.  C.  C.  339,  360,  citing  Mayor  of  Wichita  v.  A.  T.  &  S.  F.  Ry. 
Co.,  9  I.  C.  C.  534.  Long  existence  of  a  rate  not  conclusive 
against  the  carrier.  Warren  ^Ifg.  Co.  z'.  So.  R.  Co.,  12  I.  C.  C. 
381.  See  Green  Bay  Bus.  Men's  Asso,  v.  B.  &  O.  R.  Co.,  15  I. 
C.  C.  59.  Cotton  waste  should  bear  a  lower  rate  than  cotton 
goods.  Riverside  Mills  v.  So.  R.  Co.,  12  I.  C.  C.  388.  Expedited 
services  charged  for  must  be  supplied.  American  Fruit  Union 
V.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  12  I.  C.  C.  411.  Prohibitive 
rates  can  not  be  established.  Poor  v.  Chicago,  B.  &  Q.  R.  Co., 
12  I.  C.  C.  418.  Mere  comparisons  with  other  rates  under  differ- 
ent conditions  not  sufficient  to  establish  unreasonableness  of 
rates.  Dallas  Freight  Bureau  v.  M.  K.  &  T.  R.  Co.,  12  I.  C.  C. 
R.  427.  Rates  unreasonable.  Farmers  Warehouse  Co.  v.  L.  & 
N.  R.  Co.,  12  I.  O.  C.  457.  May  in  some  cases  charge  more  where 
a  line  is  composed  of  two  roads  than  when  it  is  composed  of  only 


§  339.]  Annotate:d.  469 

one.  Loup  Creek  Colliery  Co.  v.  Va.  R.  Co.,  12  I.  C.  C.  471.  Can 
make  no  general  ruling  that  through  rates  must  not  exceed  the 
sum  of  the  locals.  Coft'eyville  Vitrified  Brick  &  Tile  Co.  v.  St. 
L.  &  S.  F.  R.  Co.,  12  I.  C.  C.  498.  Not  unlawful  to  refuse  to 
carry  at  car  load  rates  mixed  cars  of  mineral  water  and  beer. 
Milwaukee,  etc.,  Brewing  Co.  v.  Chicago,  M.  &  St.  P.  R.  Co.,  13 
I.  C.  C.  28.  Ordinarily  joint  through  rate  should  be  lower  than 
sum  of  the  locals.  Laning-Harris  Coal  &  Grain  Co.  v.  Mo.  Pac. 
R.  Co.,  13  I.  C.  C.  154;  Flaccus  Glass  Co.  v.  Cleveland,  etc.,  R. 
Co.,  14  I.  C.  C.  R.  333.  Buniham,  etc..  Dry  Goods  Co.  v.  Chi- 
cago R.  T.  Co.,  14  I.  C.  C.  299;  Gump  v.  B.  &  O.  R.  Co.,  14  I. 
C.  C.  98;  Payne-Gardner  Co.  v.  L.  &  N.  R.  Co.,  13  I.  C.  C.  R. 
638 ;  Randolph  Lumber  Co.  v.  Seaboard  A.  L.  Ry.  Co.,  14  L  C. 
C.  338 ;  Sylvester  v.  Penn.  R.  Co.,  14  L  C.  C.  573.  A  railroad 
constructed  for  a  special  purpose  is  entitled  to  have  that  fact 
considered  in  making  rates.  Am.  Asphalt  Asso.  v.  Uintah  Ry.  Co., 
13  I.  C.  C.  196.  Capitalization  and  value  of  property  employed 
of  little  value  in  fixing  express  rates.  Kindel  v.  Adams  Exp.  Co., 
13  I.  C.  C.  475,  485.  Rule  as  to  released  rates.  Re  Released 
Rates.  13  L  C.  C.  550.  Improper  to  fix  rates  according  to  the 
use  of  a  commodity.  Ft.  Smith  Traffic  Bureau  v.  St.  L.  &  S.  F. 
R.  Co.,  13  L  C.  C.  651.  Considerations  involved  in  deter- 
mining the  reasonableness  of  rates.  Thompson  Lumber  Co.  v. 
Ill-  Cent.  R.  Co.,  13  I.  C.  C.  657,  664.  Voluntary  reduction  of 
rates  by  a  carrier  does  not  alone  prove  former  rate  unreasona- 
ble. Ottumwa  Bridge  Co.  v.  Chicago,  M.  &  St.  P.  R.  Co.,  14  I. 
C.  C.  121.  Storage  charges  for  a  reasonable  time  in  which  to 
remove  freight  part  of  the  transportation  and  must  be  reasonable. 
New  Yrok  Hay  Ex.  Asso.  v.  Penn.  R.  Co.,  14  I.  C.  C.  178.  In 
exceptional  cases  the  through  rate  may  exceed  the  sum  of  the 
locals.  Randolph  Lumber  Co.  v.  Seaboard  A.  L.  Ry.  Co.,  14  I. 
C.  C.  338,  citing  Minneapolis,  etc.,  R.  Co.  v.  Minnesota,  186  U. 
S.  257,  262,  46  L.  Ed.  1151,  22  Sup.  Ct.  900.  But  see  Lindsay 
Bros.  V.  Grand  Rapids  &  I.  Ry.  Co.,  15  I.  C.  C.  182;  Michigan 
Buggy  Co.  V.  Grand  Rapids  &  I.  Ry.  Co.,  15  1.  C.  C.  297.  State 
rates  though  not  binding  on  the  Interstate  Commission  are  val- 
uable in  determining  the  reasonableness  of  interstate  rates.  Corn 
Belt  Meat  Producers  Asso.  v.  Chicago,  B.  &  Q.  Ry.  Co.,  14  I. 
C.  C.  376.  The  question  of  the  reasonableness  of  a  rate  one  of 
fact  and  each  case  must  stand  upon  its  own  record.  Kansas  City 
Hay  Dealers  Asso.  v.  Mo.  Pac.  Ry.  Co.,  14  I.  C.  C.  597;  City 


470  Acts  Regulating  Commerce,  [§  339. 

of  Spokane  r.  N.  Pac.  Ry.  Co.,  15  I.  C.  C.  376.  Effect  of  in- 
creased cost  of  labor  and  materials.  Shippers  and  Receivers  Bu- 
reau of  Nekark  v.  New  York,  O.  &  W.  Ry.  Co.,  15  I.  C.  C.  264. 
Statute  declaratory  of  common  law.  Int.  Com.  Com.  v.  B.  &  O. 
R.  Co.,  43  Fed.  37,  42,  3  I.  C.  R.  192.  Affirmed.  145  U.  S.  263, 
36  L.  Ed.  699,  4  I.  C.  R.  92,  12  Sup.  Ct.  844 ;  Tift  v.  So.  Ry.  Co., 
123  Fed.  789,  792,  138  Fed.  753;  So.  Ry.  Co.  v.  Tift,' 148  Fed. 
1021,  206  U.  S.  428,  51  L.  Ed.  1124,  27  Sup.  Ct.  709.  Can  not  re- 
cover for  unreasonable  charges  except  under  statutes,  as  the  United 
States  has  no  common  law.  Swift  v.  Philadelphia  &  R.  R.  Co., 
58  Fed.  858,  64  Fed.  59.  Disapproved.  Kinnavey  v.  Terminal 
R.  Asso.  of  St.  Louis,  81  Fed.  802,  804;  Western  Union  Tel.  Co. 
V.  Call  Publishing  Co.,  181  U.  S.  92,  45  L.  Ed.  765,  21  Sup.  Ct. 
561.  In  determining  the  question  whether  or  not  a  rate  is  rea- 
sonable rigorous  theoretical  rules  can  not  be  adopted — circum- 
stances that  must  be  considered  stated.  Int.  Com.  Com.  v.  L.  & 
N.  R.  Co.,  73  Fed.  409,  419  to  426.  Cost  of  service  of  a  partic- 
ular movement  can  not  be  found  by  taking  the  average  cost  of 
all  movements  of  same  commodity.  Int.  Com.  Com.  v.  Lehigh  V. 
R.  Co.,  74  Fed.  784.  The  word  "charges"  used  in  section  de- 
fined. Detroit,  G.  H.  &  M.  Ry.  v.  Int.  Com.  Com.,  74  Fed.  803, 
21  C.  C.  A.  103,  43  U.  S.  App.  308,  reversing  57  Fed.  1005,  4  I. 
C.  R.  722.  Affirmed.  167  U.  S.  633,  42  L.  Ed.  306,  17  Sup.  Ct. 
986.  Reasons  for  the  act.  Van  Patten  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  81  Fed.  545.  Question  whether  or  not  rates  are  rea- 
sonable a  relative  one  and  may  be  determined  by  comparison. 
Int.  Com.  Com.  z'.  East  Tenn.,  V.  &  G.  Ry.  Co.,  85  Fed.  107,  en- 
forcing order  in  5  I.  C.  C.  R.  546,  2  I.  C.  R.  798,  3  id.  106,  4  id. 
213.  Affirmed.  East  T.  V.  &  G.  Ry.  Co.  v.  Int.  Com.  Com.,  99 
Fed.  52.  Reversed  181  U.  S.  1,  45  L.  Ed.  719,  21  Sup.  Ct.  516. 
Mere  fact  of  a  greater  charge  for  a  shorter  than  a  longer  haul 
does  not  prove  rate  unreasonable.  Int.  Com.  Com.  v.  Western  & 
A.  R.  Co.,  88  Fed.  186;  Allen  v.  Oregon  R.  &  Nav.  Co.,  98  Fed. 
16;  Int.  Com.  Com.  v.  Nashville,  C.  &  St.  N.  S.  &  St.  L.  Ry.  Co., 
120  Fed.  934.  Refusing  to  enforce  order,  8  I.  C.  C.  R.  503.  Sec- 
tion defined,  its  purpose  stated  and  a  statement  of  what  must  be 
considered  in  determining  the  reasonableness  of  a  rate.  Int.  Com. 
Com.  V.  Chicago  G.  W.  Ry.  Co.,  141  Fed.  1003.  Affirmed.  209 
U.  S.  108,  52 ^L.  Ed.  705^  28  Sup.  Ct.  493,  where  is  stated  the 
probative  eft'ect  of  a  rate  long  in  existence.  Demurrage  charges 
must  be  reasonable  and  such  charges  governed  by  section.    Michie 


§  340.]  Annotated.  471 

V.  New  York,  N.  H.  &  H.  R.  Co.,  151  Fed.  694.  The  question 
of  the  reasonableness  of  a  rate  is  a  judicial  one.  Chicago,  M.  & 
St.  P.  Ry.  Co.  V.  ^linnesota,  134  U.  S.  418,  2,Z  L.  Ed.  970,  981,  10 
Sup.  Ct.  462,  702.  Under  act  prior  to  June  29,  1906,  Commission 
could  determine  the  reasonableness  of  a  particular  rate,  but  could 
not  prescribe  rates.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Int. 
Com.  Com.,  162  U.  S.  184,  40  L.  Ed.  935,  16  Sup.  Ct.  700.  Int. 
Com.  Com.  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.,  167  U.  S.  479, 
511,  42  L.  Ed.  243,  17  Sup.  Ct.  896.  Affirming  76  Fed.  183. 
Int.  Com.  Com.  v.  Ala.  M.  Ry.  Co.,  168  U.  S.  144,  162,  42  L.  Ed. 
414,  18  Sup.  Ct.  45.  This  power  now  specifically  given  by  act 
June  29,  1906.  Expenditures  for  permanent  improvements  should 
not  be  charged  to  current  expenses.  111.  Cent.  R.  Co.  v.  Int.  Com. 
Com.,  206  U.  S.  441,  51  L.  Ed.  1128,  27  Sup.  Ct.  700. 

Notes  of  Decisions  Rendered  Since  1909. 

A  published  rate  not  just  and  reasonable  is  not  lawful  when  at- 
tacked— "Legal"  and  "lawful"  distinguished — Arkansas  Fuel 
Co.  V.  C.  M.  &  St.  P.  Ry.  Co.,  16  I.  C.  C.  95,  97.  Applies  to  mile- 
age book  rates.  Commutation  Rate  Case,  21  I.  C.  C.  428,  442, 
443.  "Lawfulness"  under  Sec.  1  not  to  be  confused  with  "legal- 
ity" under  Section  6.  Crescent  Coal  &  Mining  Co.  v.  C.  &  E.  I. 
R.  R.  Co.,  24  I.  C.  C.  149,  156,  Covers  all  cases  of  unreason- 
ableness relatively  and  otherwise.  Board  of  Trade  of  Chicago  v. 
C.  &  A.  R.  R.  Co.,  27  I.  C.  C.  530,  535.  Elevation  is  a  service 
in  connection  with  transportation.  Elevation  Allowances  at  St. 
Louis,  30  I.  C.  C.  696,  697.  Value  of  the  commodity  a  material 
fact.    Western  Advance  Rate  case  1915,  35  I.  C.  C.  497-606. 

§  340.  Classification  of  Telegraph,  Telephone  and  Cable 
Messages. — Provided,  That  messages  by  telegraph,  telephone, 
or  cable,  subject  to  the  provisions  of  this  act,  may  be  classified 
into  day,  night,  repeated,  unrepeated,  letter,  commercial,  press, 
Government,  and  such  other  classes  as  are  just  and  reasonable, 
and  different  rates  may  be  charged  for  the  different  classes  of 
messages :  And  provided  further,  That  nothing  in  this  act  shall 
be  construed  to  prevent  telephone,  telegraph  and  cable  companies 
from  entering  into  contracts  with  common  carriers,  for  the  ex- 
change of  services. 

Added  to  Sec.  1  by  Amendment  of  June  18,  1910. 

Classification  must  be  initiated  by  the  carrier — White  v.  W.  U. 
Tel.  Co.,  33  I.  C.  C.  500.     Provision  for  limited  liability  valid. 


472  Acts  Regulating  Commerce,  [§  341. 

Western  Union  Tel.  Co.  v.  Compton,  —  Ark.  — ,  169  S.  W.  946, 
contra,  Bailey  v.  Western  Union  Tel.  Co.,  171  S.  W.  839.  State 
laws  relating  to  delivery  of  telegrams  superceded  by  act.  Norfolk 
Truckers  Exchange  v.  Western  Union  Tel.  Co.,  82  S.  E.  92;  W. 
U.  Tel.  Co.  V.  First  National  Bank,  83  S.  E.  424. 

Rule  that  misquoting  a  rate  does  not  relieve  from  payment  of 
correct  rate  does  not  apply  to  telegraph  companies.  Higbee  v. 
W.  U.  Tel.  Co.,  179  Mo.  App.  195,  166  S.  W.  825. 

§  341.  Classifications,  Regulations  and  Practices  Must 
Be  Reasonable.- — And  it  is  hereby  made  the  duty  of  all  com- 
mon carriers  subject  to  the  provisions  of  this  act  to  establish, 
observe,  and  enforce  just  and  reasonable  classifications  of  prop- 
erty for  transportation,  with  reference  to  which  rates,  tariffs,  reg- 
ulitions,  or  practices  are  or  may  be  made  or  prescribed,  and  just 
and  reasonable  regulations  and  practices  affecting  classifications, 
rates,  or  tariffs,  the  issuance,  form,  and  substance  of  tickets,  re- 
ceipts, and  bills  of  lading,  the  manner  and  method  of  presenting, 
marking,  packing,  and  delivering  property  for  transportation,  the 
facilities  for  transportation,  the  carrying  of  personal,  sample,  and 
excess  baggage,  and  all  other  matters  relating  to  or  connected 
with  the  receiving,  handling,  transporting,  storing,  and  delivery 
of  property  subject  to  the  provisions  of  this  act  which  may  be 
necessary  or  proper  to  secure  the  safe  and  prompt  receipt,  hand- 
ling, transportation,  and  delivery  of  property  subject  to  the  pro- 
visions of  this  act  upon  just  and  reasonable  terms,  and  every 
such  unjust  and  unreasonable  classification,  regulation,  and  prac- 
tice with  reference  to  commerce  between  the  states  and  with  for- 
eign countries  is  prohibited  and  declared  to  be  unlawful. 

Added  to  section  one  by  Amendment  of  1910. 

Section  quoted  in  considering  the  character  of  cars  furnished. 
Southwestern  ^lo.  Alillers  Club  v.  St.  L.  &  S.  F.  R.  R.  Co.,  26 
I.  C.  C.  245,  249.  Quoted  in  reference  to  baggage  shape  and 
dimensions.  Regulations  Restricting  the  Dimensions  of  Bag- 
gage, 26  I.  C.  C.  292,  293.  Classification  a  public  function  prin- 
ciple of,  discussed.  Suspension  of  Western  Classification,  25  I. 
C.  C.  442 ;  Western  Trunk  Line  Rules,  34  I.  C.  C.  554. 

§  342.  Free  Services  with  Certain  Exceptions  Prohibited 
and  Penalties  Prescribed. — No  common  carrier  subject  to  the 
provisions  of  this  act  shall,  after  January  first,  nineteen  hundred 
and  seven,  directly  or  indirectly,  issue  or  give  any  interstate  free 
ticket,   free  pass,  or  free  transportation  for  passengers,  except 


§  342.]  Annotated.  473 

to  its  employees  and  their  families,  its  officers,  agents,  surgeons, 
physicians,  and  attorneys  at  law;  to  ministers  of  religion,  travel- 
ing secretaries  of  railroad  Young  ]\Ien's  Christian  Associations, 
inmates  of  hospitals  and  charitable  and  eleemosynary  institutions, 
and  persons  exclusively  engaged  in  charitable  and  eleemosynary 
work;  to  indigent,  destitute  and  homeless  persons,  and  to  such 
persons  when  transported  by  charitable  societies  or  hospitals,  and 
the  necessary  agents  employed  in  such  transportation ;  to  inmates 
of  the  National  Homes  or  State  Homes  for  Disabled  Volunteer 
Soldiers,  and  of  Soldiers'  and  Sailors'  Homes,  including  those 
about  to  enter  and  those  returning  home  after  discharge ;  to  nec- 
essary care  takers  of  live  stock,  poultry,  milk  and  fruit;  to  em- 
ployees on  sleeping  cars,  express  cars,  and  to  lineman  of  telegraph 
and  telephone  companies ;  to  railway  mail  service  employees, 
postoffice  inspectors,  customs  inspectors,  and  immigration  in- 
spectors ;  to  newsboys  on  trains,  baggage  agents,  wit- 
nesses attending  any  legal  investigation  in  which  the 
common  carrier  is  interested,  persons  injured  in  wrecks 
and  physicians  and  nurses  attending  such  persons :  Provided, 
That  this  provision  shall  not  be  construed  to  prohibit  the  inter- 
change of  passes  for  the  officers,  agents,  and  employees  of  com- 
mon carriers,  and  their  families ;  nor  to  prohibit  any  common 
carrier  from  carrying  passengers  free  with  the  object  of  provid- 
ing relief  in  cases  of  general  epidemic,  pestilence,  or  other  ca- 
lamitous visitation : 

And  provided  furtlicr,  That  this  provision  shall  not  be  con- 
strued to  prohibit  the  privilege  of  passes  or  franks,  or  the  ex- 
change thereof  with  each  other,  for  the  officers,  agents,  em- 
ployees and  their  families  of  such  telegraph,  telephone,  and  cable 
lines,  and  the  officers,  agents,  employees  and  their  families  of 
other  common  carriers  subject  to  the  provisions  of  this  act. 

Provided  further,  That  the  term  "employees"  as  used  in  this 
paragraph  shall  include  furloughed,  pensioned,  and  superannu- 
ated employees,  persons  who  have  become  disabled  or  infiirm  in 
the  service  of  any  such  common  carrier,  and  the  remains  of  a 
person  killed  in  the  employment  of  a  carrier  and  ex-employees 
traveling  for  the  purpose  of  entering  the  service  of  any  such  com- 
mon carrier;  and  the  term  "families"  as  used  in  this  paragraph 
shall  include  the  families  of  those  persons  named  in  this  proviso, 
also  the  families  of  persons  killed  and  their  widows  during 
widowhood  and  minor  children  during  minority  of  persons  who 


474  Acts  Regulating  Commerce,  [§  342. 

died  while  in  the  service  of  any  such  common  carrier.  Any 
common  carrier  violating  this  provision  shall  be  deemed  guilty 
of  a  misdemeanor  and  for  each  offense,  on  conviction,  shall  pay 
to  the  United  States  a  penalty  of  not  less  than  one  hundred  dol- 
lars nor  more  than  two  thousand  dollars,  and  any  person,  other 
than  the  person  excepted  in  this  provision,  who  uses  any  such  in- 
terstate free  ticket,  free  pass,  or  free  transportation  shall  be  sub- 
ject to  a  like  penalty.  Jtirisdiction  of  offenses  under  this  pro- 
vision shall  be  the  same  as  that  provided  for  offenses  in  an  act  en- 
titled "An  act  to  further  regulate  commerce  with  foreign  nations 
and  among  the  states,"  approved  February  nineteenth,  nineteen 
hundred  and  three,  and  any  amendment  thereof. 

Paragraph  5  of  section  one  of  act  added  by  act  of  June  29, 
1906,  and  as  further  amended  by  acts  April  13,  1908,  and  June 
18,  1910,  which  later  act  amended  the  section  by  adding  part  in 
italics. 

Paragraph  4  of  section  one  of  the  act  of  June  29,  1906,  read  as 
follows : 

"No  common  carrier  subject  to  the  provisions  of  this  act  shall, 
after  January  first,  nineteen  hundred  and  seven,  directly  or  in- 
directly, issue  or  give  any  interstate  free  ticket,  free  pass,  or  free 
transportation  for  passengers,  except  to  its  employees  and  their 
families,  its  officers,  agents,  surgeons,  physicians,  and  attorneys 
at  law;  to  ministers  of  religion,  traveling  secretaries  of  railroad 
Young  Men's  Christian  Associations,  inmates  of  hospitals  and 
charitable  and  eleemosynary  institutions,  and  persons  exclusively 
engaged  in  charitable  and  eleemosynary  work ;  to  indigent,  des- 
titute and  homeless  persons,  and  to  such  persons  when  trans- 
ported by  charitable  societies  or  hospitals,  and  the  necessary 
agents  employed  in  such  transportation ;  to  inmates  of  the  Na- 
tional Homes  or  State  Homes  for  Disabled  \"olunteer  Soldiers, 
and  of  Soldiers'  and  Sailors'  Homes,  including  those  about  to 
enter  and  those  returning  home  after  discharge  and  boards  of 
managers  of  such  homes ;  to  necessary  care  takers  of  live  stock, 
poultry  and  fruit ;  to  employees  on  sleeping  cars,  express  cars, 
and  to  linemen  of  telegraph  and  telephone  companies ;  to  rail- 
way mail  service  employees,  postofiice  inspectors,  customs  in- 
spectors and  immigration  inspectors ;  to  newsboys  on  trains,  bag- 
gage agents ;  witnesses  attending  any  legal  investigation  in  which 
the  common  carrier  is  interested,  persons  injured  in  wrecks  and 
physicians  and  nurses  attending  such  persons:     Provided,  That 


§  342.]  Annotated.  475 

this  provision  shall  not  be  construed  to  prohibit  the  interchange 
of  passes  for  the  officers,  agents,  and  employees  of  common  car- 
riers, and  their  families ;  nor  to  prohibit  any  common  carrier 
from  carrying  passengers  free  with  the  object  of  providing  re- 
lief in  cases  of  general  epidemic,  pestilence,  or  other  calamitous 
visitation.  Any  common  carrier  violating  this  provision  shall 
be  deemed  guilty  of  a  misdemeanor  and  for  each  offense,  on  con- 
viction, shall  pay  to  the  United  States  a  penalty  of  not  less  than 
one  hundred  dollars  nor  more  than  two  thousand  dollars,  and 
any  person,  other  than  the  persons  excepted  in  this  provision, 
who  uses  any  such  interstate  free  ticket,  free  pass,  or  free  trans- 
portation, shall  be  subject  to  a  like  penalty.  Jurisdiction  of  of- 
fenses under  this  provision  shall  be  the  same  as  that  provided 
for  offenses  in  an  act  entitled  "An  act  to  further  regulate  com- 
merce with  foreign  nations  and  among  the  states,"  approved 
February  nineteenth,  nineteen  hundred  and  three  and  any  amend- 
ment thereof. 

The  original  act  did  not  expressly  prohibit  free  transportation, 
and  it  was  only  when  such  transportation  constituted  discrimina- 
tion and  was  not  in  the  exception  contained  in  section  22  that  it 
was  illegal.  Ex  parte  Koehler,  31  Fed.  315.  Re  Charge  to 
Grand  Jury,  66  Fed.  146. 

Evils  of  free  transportation.  First  Annual  Report  of  Int. 
Com.  Com.,  1  I.  C.  R.  650,  654.  Not  to  be  granted  for  influence. 
Slater  v.  N.  Pac.  R.  Co.,  2  I.  C.  C.  359,  2  I.  C.  R.  243;  Harvey 
V.  L.  &  X.  R.  Co.,  5  I.  C.  C.  153,  3  I.  C.  R.  793.  Re  Carriage 
of  Persons  Free,  5  I.  C.  C.  69,  3  I.  C.  R.  717.  Land  and  im- 
migration agents  not  entitled  to  free  transportation.  Re  Com- 
plaint of  Illinois  Central  R.  Co.,  12  I.  C.  C.  7.  Certain  em- 
ployees of  telegraph  companies  may  receive  free  or  reduced 
transportation.  Re  Railroad  Telegraph  Companies,  12  I.  C.  C. 
10.  Newspaper  employees  whose  duties  are  to  assort  papers  on 
special  newspaper  trains  not  entitled  to  free  transportation.  Re 
Free  Transportation  to  Newspaper  Employees,  12  I.  C.  C.  15. 
Not  allowed  to  baggage  express  companies.  Re  Exchange  of 
Free  Transportation  Between  Railroads  and  Baggage  Express 
Companies,  12  I.  C.  C.  39.  Rule  between  express  and  railroad 
companies.  ■  Re  Contracts  of  Express  Companies  for  Free  Trans- 
portation, 16  I.  C.  C.  246.  The  Commission  holds  that  ministers 
engaged  in  other  than  pastoral  work  may  legally  be  accorded 
special  transportation  privileges.     Re  Passes  to  Clergymen,  15  I. 


476  Acts  Regulating  Commerce,  [§  343. 

C.  C.  45.  Act  does  not  affect  valid  subsisting  contracts  for  free 
transportation.  Alottley  v.  L.  &  N.  R.  Co.,  150  Fed.  406,  contra, 
219  U.  S.  467,  55  L.  Ed.  297,  31  Sup.  Ct.  265,  34  L.  R.  A.  (N. 
S.)  671.  Kurry  v.  Kansas  &  C.  P.  Ry.,  58  Kansas  6,  48  Pac. 
579.  Express  franks  illegal,  even  to  officers  and  employees. 
United  States  v.  Wells  Fargo  Express  Co.,  161  Fed.  606;  Amer- 
ican Ex.  Co.  V.  United  States,  212  U.  S.  522,  53  L.  Ed.  635,  29 
Sup.  Ct.  315.  Contract  to  furnish  transportation  for  advertising 
illegal.    United  States  v.  Chicago,  etc.,  R.  Co.,  163  Fed.  114. 

The  amendment  of  1910  relating  to  express  and  telephone 
passes  and  franks  is  indicated  by  italics. 

The  decision  in  the  case  of  United  States  v.  Wells-Fargo  Ex. 
Co.,  was  rendered  prior  to  the  amendment  of  1910. 

Notes  of  Decisions  Rendered  Since  1909. 

Meaning  of  "employees  on  express  cars"  discussed.  Re  Con- 
tracts for  Free  Transportations,  16  I.  C.  C.  246,  249.  Evils  of 
giving  passes,  even  though  intrastate  to  interstate  shipper  dis- 
cussed. Colorado  Free  Pass  Investigated,  26  I.  C.  C.  488,  494; 
Montana  Pass  Situation,  29  I.  C.  C.  411;  Five  per  cent  case, 
31  I.  C.  C.  351,  410.  Contract  for  annual  pass  not  valid.  Louis- 
ville &  N.  R.  R.  Co.  V.  Mottley,  219  U.  S.  467,  55  L.  Ed.  297,  31 
Sup.  Ct.  265,  34  L.  R.  A.  (N.  S.)  671.  Violation  of  law  to  sell  a 
free  pass  to  one  not  entitled  to  use  it.  U.  S.  v.  JNIartin,  176  Fed. 
110. 

See  notes  to  Sec.  22  of  Act.  Sec.  442 — post. 

§  343.  Railroad  Companies  Prohibited  from  Transport- 
ing- Commodities  in  Which  They  Are  Interested,  with  Cer- 
tain Exceptions. — From  and  after  May  first,  nineteen  hundred 
and  eight,  it  shall  be  unlawful  for  any  railroad  company  to  trans- 
port from  any  state,  territory  or  the  District  of  Columbia,  to  any 
other  state,  territory,  or  the  District  of  Columbia,  or  to  any  for- 
eign country,  any  article  or  commodity,  other  than  timber  and  the 
manufactured  products  thereof,  manufactured,  mined,  or  pro- 
duced by  it,  or  under  its  authority,  or  which  it  may  own  in  whole, 
or  in  part,  or  in  which  it  may  have  any  interest  direct  or  indirect 
except  such  articles  or  commodities  as  may  be  necessary  and 
intended  for  its  use  in  the  conduct  of  its  business  as  a  common 
carrier. 

Paragraph  6,  section  one,  of  act  as  added  by  act  June  29,  1906. 
Unconstitutional.     United  States  v.  Delaware  &  H.  Co..  164  Fed. 


§  344.]  Annotated.  477 

215,  22d  Annual  Report  Interstate  Com.  Com.  (1908)  17.  Cir- 
cuit court  reversed  and  section  held  valid  as  construed  by  Su- 
preme Court.  United  States  z'.  Delaware  &  H.  Co.,  213  U.  S. 
366,  53  L.  Ed.  836,  29  Sup.  Ct.  527.  Does  not  apply  to  intrastate 
shipment.  Central  Trust  Co.  z'.  Pittsburg,  etc.,  R.  Co.,  101  X.  Y. 
Sup.  837,  114  App.  Div.  907. 

Notes  of  Decision  Rendered  Since  1909. 

Cited  as  prohibiting  carrier  from  transporting  Coal  mined  by 
it.  Consolidated  Fuel  Co.  z'.  A.  T.  &  S.'f.  Ry.  Co.,  27  I.  C.  C. 
554,  556.  Applies  to  a  corporation  owned  by  the  carrier  when 
the  corporation  has  no  real  independent  existence  and  distin- 
guishing U.  S.  V.  Delaware  &  H.  Co.,  213  U.  S.  366,  53  L.  Ed. 
836,  29  Sup.  Ct.  527 — that  facts  fail  to  show  clause  applies. 
Campbell's  Creek  Coal  Co.  v.  A.  A.  R.  R.  Co.,  29  I.  C.  C.  682. 
United  States  z'.  Lehigh  A  alley  R.  Co.,  220  U.  S.  257,  55  L.  Ed. 
458,  31  Sup.  Ct.  387.  Statute  valid  and  held  that  hay  for  animals 
used  in  coal  mines  OAvned  by  carrier  within  the  provision.  Dela- 
ware, L.  &  W.  R.  Co.  z'.  L\  S.,  231  U.  S.  363,  58  L.  Ed.  269,  34 
Sup.  Ct.  65.  The  question  relating  to  the  provision  not  so  pre- 
sented as  to  require  decision.  United  States  v.  B.  &  O.  R.  Co. 
Sugar  Lighterage  Case,  231  U.  S.  274,  58  L.  Ed.  218,  34  Sup.  Ct. 
75,  affirming  Bakimore  &  O.  R.  Co.,  200  Fed.  779,  Opin.  Com.  Ct. 
No.  381,  499.  For  decisions  of  Commission,  see  Federal  Sugar 
Refining  Co.  v.  B.  &  O.  R.  Co.,  17  L  C.  C.  40,  20  L  C.  C.  200. 
Statute  and  decisions  applied  and  questions  fully  discussed.  U. 
S.  V.  Delaware,  L.  &  W.  R.  Co.,  213  Fed.  240.  See  same  case 
United  States  r.  D.  L.  &  W.  R.  Co.,  238  U.  S.  516,  59  L.  Ed.— 35 
Sup.  Ct.  873.  Citing  and  discussing  the  clause.  Rates  for  trans- 
portation of  Anthracite  Coal,  35  L  C.  C.  220,  248. 

§  344.  Terms  under  Which.  Switch  Connections  Shall  Be 
Made. — Any  common  carrier  subject  to  the  provisions  of  this 
Act,  upon  application  of  any  lateral,  branch  line  of  railroad,  or 
of  any  shipjjer  tendering  interstate  traffic  for  transportation,  shall 
construct,  maintain,  and  operate  upon  reasonable  terms  a  switch 
connection  with  any  such  lateral,  branch  line  of  railroad,  or  pri- 
vate side  track  which  may  be  constructed  to  connect  with  its  rail- 
road, where  such  connection  is  reasonably  practicable  and  can 
be  put  in  with  safety  and  will  furnish  sufficient  business  to  jus- 
tify the  construction   and   maintenance  of  the  same;  and   shall 


47S  Acts  Regulatixg  Commerce,  [§  344. 

furnish  cars  for  the  movement  of  such  traffic  to  the  best  of  its 
ability  without  discrimination  in  favor  of  or  against  any  such 
shipper.  If  any  common  carrier  shall  fail  tp  install  and  operate 
any  such  switch  or  connection  as  aforesaid,  on  application  there- 
for in  writing  by  any  shipper  or  ozcner  of  such  lateral,  branch 
line  of  railroad,  such  shipper  or  ozinier  of  such  lateral,  branch 
line  of  railroad  may  make  complaint  to  the  Commission,  as  pro- 
vided in  section  thirteen  of.  this  Act,  and  the  Commission  shall 
hear  and  investigate  the  same  and  shall  determine  as  to  the  safety 
and  practicability  thereof  and  justification  and  reasonable  com- 
pensation therefor,  and  the  Commission  may  make  an  order,  as 
provided  in  section  fifteen  of  this  act,  directing  the  common  car- 
rier to  comply  with  the  provisions  of  this  section  in  accordance 
with  such  order,  and  such  order  shall  be  enforced  as  hereinafter 
provided  for  the  enforcement  of  all  other  orders  by  the  Com- 
mission, other  than  orders  for  the  payment  of  money. 

Last  paragraph,  section  one,  of  act  as  added  by  act  of  June 
29,  1906,  and  June  18,  1910,  which  later  added  clause  is  italicised. 

Under  paragraph  2,  section  3,  of  this  act  prior  to  the  amend- 
ment of  June  29,  1906,  switch  connections  could  be  ordered  when 
the  failure  to  do  so  constituted  discrimination.  Red  Rock  Fuel 
Co.  V.  Bait.  &  O.  R.  Co.,  11  I.  C.  C.  R.  438.  Written  application 
must  be  made  to  give  the  Commission  jurisdiction.  Barden  & 
S.  V.  Lehigh  A".  R.  Co.,  12  1.  C.  C.  R.  193.  Connection  ordered. 
McRae  T.  Ry.  v.  So.  Ry.  Co.,  12  L  C.  C.  R.  270,  545.  Carriers 
should  not  repay  shippers  for  switch  connections  with  transpor- 
tation. Weleetka  Light  &  Water  Co.  v.  Ft.  Smith  &  W.  R.  Co., 
12  L  C.  C.  R.  503.  Section  discussed  and  construed.  Rahway 
A'alley  R.  Co.  v.  Delaware,  L.  &  W.  R.  Co.,  14  I.  C.  C.  R.  191 ; 
McCormick  v.  Chicago,  B.  &  Q.  R.  Co.,  14  I.  C.  C.  R.  611.  State 
court  may  in  absence  of  action  by  Commission  compel  switch  con- 
nection. Alo.  Pac.  R.  Co.  V.  Larabee  Flour  Mills  Co.,  211  U.  S. 
612,  '^2>  L.  Ed.  y:)2,  29  Sup.  Ct.  214.  See  also  Wisconsin,  etc., 
R.  Co.  c'.  Jacobson,  179  U.  S.  287,  45  L.  Ed.  194,  21  Sup.  Ct. 
115. 

Notes  of  Decision  Rendered  Since  1909. 

Prior  to  amendment  of  1910  held  that  a  lateral  branch  railroad 
could  not  apply  for  a  switch  connection.  Int.  Com.  Com.  v.  Dela- 
ware, L.  &  W.  R.  Co.,  216  U.  S.  531,  54  L.  Ed.  605,  30  Sup.  Ct. 
415,  affirming.     Delaware,  L.  &  W.  Co.  :■.  Int.  Com.  Com.,  166 


§  345.]  Annotated.  479 

Fed.  498.  The  private  track  to  be  connected  must  exist.  Win- 
ters Metallic  Paint  Co.  v.  C.  M.  &  St.  P.  Ry.  Co.,  16  I.  C.  C. 
687.  Joint  rates  denied.  Blakely  S.  R.  Co.  v.  A.  C.  L.  R.  R.  Co., 
26  I.  C.  C.  344.  To  be  read  with  provisions  requiring  transpor- 
tation to  be  furnished  and  applies  to  lateral  branch  roads 
whether  plant  facilities  or  not.  Huerfano  Coal  Co.  v.  C.  &  S. 
E.  R.  R.  Co.,  28  I.  C.  C.  502,  505.  It  is  not  illegal  to  require  a 
switch  connection  for  the  use  of  only  one  shipper.  Union  Lime 
Co.  V.  C.  &  N.  W.  Ry.  Co.,  233  U.  S.  211,  58  L.  Ed.  924,  34  Sup. 
Ct.  522;  Federal  Sugar  Refining  Co.  v.  Central  of  N.  J.  R.  Co., 
35  I.  C.  C.  488.  State  law  only  indirectly  affecting  interstate 
commerce  valid.  L.  &  X.  R.  R.  Co.  %>.  Hidgon,  234  U.  S.  592, 
58  L.  Ed.  1184,  34  Sup.  Ct.  948. 

§  345.  Definition  and  Prohibition  of  Unjust  Discrimina- 
tion.— That  if  any  common  carrier  subject  to  the  provisions  of 
this  act  shall,  directly  or  indirectly,  by  any  special  rate,  rebate, 
drawback,  or  other  device,  charge,  demand,  collect,  or  receive 
from  any  person  or  persons  a  greater  or  less  compensation  for 
any  service  rendered,  or  to  be  rendered,  in  the  transportation  of 
passengers  or  property,  subject  to  the  provisions  of  this  act,  than 
it  charges,  demands,  collects  or  receives  from  any  other  person  or 
persons  for  doing  for  him  or  them  a  like  and  contemporaneous 
service  in  the  transportation  of  a  like  kind  of  traffic  under  sub- 
stantially similar  circumstances  and  conditions,  such  common  car- 
rier shall  be  deemed  guilty  of  unjust  discrimination,  which  is 
hereby  prohibited  and  declared  to  be  unlawful. 

Section  2  of  the  original  act. 

Modeled  on  §  90  English  Act  1845.  The  Laws  of  Railway,  by 
Browne  &  Theobald,  312,  313;  Halsbury's  Laws  of  England, 
Vol.  4,  p.  74.  Railroad  Commissioners  of  Georgia  v.  Clyde 
Steamship  Co.,  5  L  C.  C.  R.  324,  4  L  C.  R.  121,  140.  English 
act  is  as  follows : 

"/\nd  whereas  it  is  expedient  that  the  company  should  be  en- 
abled to  vary  the  tolls  upon  the  railway  so  as  to  accommodate 
them  to  the  circumstances  of  the  traffic  but  that  such  power  of 
varying  should  not  be  used  for  the  purpose  of  prejudicing  or 
favoring  particular  parties  or  for  the  purpose  of  coUusively  or 
unfairly  creating  a  monopoly,  either  in  the  hands  of  the  com- 
pany or  of  particular  parties;  it  shall  be  unlawful,  therefore,  for 
the  company,  subject  to  the  j^rovisions  and  limitations  herein  and 
in  the  special  act  contained  from  time  to  time  to  alter  or  vary 


480  Acts  Regulating  Commerce,  [§  345. 

the  tolls  by  the  special  act  authorized  to  be  taken,  either  upon 
the  whole  or  upon  any  particular  portions  of  the  railway,  as  they 
shall  think  fit ;  provided,  that  all  such  tolls  be  at  all  times  charged 
equally  to  all  persons,  and  after  the  same  rate,  whether  per  ton 
per  mile,  or  otherwise,  in  respect  of  all  passengers,  and  of  all 
goods  or  carriages  of  the  same  description,  and  conveyed  or 
propelled  by  a  like  carrij^e  or  engine,  passing  only  over  the 
same  portion  of  the  line  of  railway  under  the  same  circum- 
stances ;  and  no  reduction  or  advance  in  any  such  tolls  shall  be 
made  either  directly  or  indirectly  in  favor  of  or  against  any 
particular  company  or  person  traveling  upon  or  using  the  rail- 
way."' 

Xot  violated  by  failure  to  allow  same  mileage  to  private  car 
companies  as  to  connecting  carriers.  Burton  Stock  Car  Co.  v. 
C.  B.  &  O.  R.  Co..  1  I.  C.  C.  132,  1  I.  C.  R.  329.  Discrimina- 
tion to  allow  large  shippers  a  discount.  Providence  Coal  Co.  v. 
Providence  &  W.  R.  Co.,  1  I.  C.  C.  107,  1  I.  C.  R.  316,  363. 
Mileage  rates  must  be  open  to  all.  Larrison  v.  Chicago,  etc.,  R. 
Co.,  1  I.  C.  C.  147,  1  I.  C.  C.  369.  Uniform  and  general  regu- 
lations not  illegal  though  more  favorable  to  some  than  to  other 
localities.  Crews  v.  Richmond  &  D.  R.  Co.,  1  I.  C.  C.  R.  401, 
1  I.  C.  R.  703,  712.  Excursion  rates  legal.  Associated  Whole- 
sale Grocers  v.  Mo.  Pac.  R.  Co.,  1  I.  C.  C.  156,  1  I.  C.  R.  321, 
393.  Low  rates  settlers"  tickets  must  be  open  to  all  classes. 
Smith  V.  N.  P.  R.  Co.,  1  I.  C.  C.  208,  I.  C.  R.  611;  Elvey  v. 
111.  Cent.  R.  Co.,  3  I.  C.  C.  652,  2  I.  C.  R.  804.  Rates  not  un- 
reasonably high  may  be  illegal  because  discriminatory.  Ray- 
mond V.  Chi.,  M.  &  St.  P.  R.  Co.,  1  I.  C.  C.  230,  1  I.  C.  R. 
474,  627.  "Substantially  similar  circumstances  and  conditions" 
defined.  Business  Men's  Asso.  v.  Chicago,  St.  Paul,  '\l.  &  O.  R. 
Co.,  2  I.  C.  C.  ^2,  2  I.  C.  R.  41.  Shipments  of  oil  in  barrels 
and  in  tanks  should  be  at  the  same  rate.  Rice  v.  L.  &  N.  R.  Co., 
1  I.  C.  C.  503,  1  I.  C.  R.  354,  376,  443,  722 ;  Schofield  v.  Lake, 
etc.,  R.  Co.,  1  I.  C.  R.  593,  2  I.  C.  R.  90,  2  I.  C.  R.  67;  Rice  v. 
Western  New  York,  etc.,  R.  Co.,  4  I.  C.  C.  131,  2  I.  C.  R.  298, 
499;  3  id.  162;  Rice  v.  Cincinnati,  etc.,  R.  Co.,  5  I.  C.  C.  193, 
3  I.  C.  R.  841 ;  Independent  Refiners  Asso.  r.  Penn.  R.  Co.,  6  1. 
C.  C.  52,  4  I.  C.  R.  162,  369,  5  I.  C.  C.  415,  2  I.  C.  R.  294, 
296,  4  I.  C.  R.  162.  May  classify  immigrants  for  special  rates. 
Savery  v.  New  York  Cent.,  etc.,  R.  Co.,  2  I.  C.  C.  338,  1  I.  C. 
R.  695,  2  I.  C.  R.  210.     Free  transportation  to  obtain  the  in- 


§  345.]  Annotated.  481 

fluence  of  the  holder  in  getting  business  illegal.  Slater  v.  N. 
Pac.  R.  Co.,  2  I.  C.  C.  359,  2  I.  C.  R.  32,  243.  Mines  in  the 
same  general  territory  may  be  grouped  and  take  the  same  rate. 
Rend  V.  Chi.  &  N.  W.  R.  Co.,  1  I.  C.  C.  793,  812,  2  I.  C.  R. 
540,  2  I.  C.  R.  313;  Coxe  v.  Lehigh  V.  R.  Co.,  4  I.  C.  C.  535, 

2  I.  C.  R.  195,  3  id.  460.  Rates  must  be  relatively  fair  in 
substance  and  in  fact.  Detroit  Board  of  Trade  v.  Grand  Trunk 
R.  Co.,  2  I.  C.  C.  315,  1  I.  C.  R.  699,  701,  2  I.  C.  R.  199.  A 
carrier's  percentage  of  a  through  rate  may  be  less  than  the  local 
charge  for  the  same  haul.  Chamber  of  Commerce  of  Milwaukee 
V.  Flint,  etc.,  R.  Co.,  2  I.  C.  C.  553,  1  I.  C.  R.  774,  792,  2  I. 
C.  R.  393;  Lippman  v.  111.  Cent.  R.  Co.,  2  I.  C.  C.  584,  2  I. 
C.  R.  414;  New  Orleans  Cotton  Exchange  v.  111.  Cent.  R.  Co., 

3  I.  C.  C.  534,  2  I.  C.  R.  460,  777;  New  York,  New  Haven,  etc., 
R.  Co.  V.  Piatt,  7  I.  C.  C.  323.  ]\Iileage,  excursion  and  com- 
mutation tickets  must  be  ofifered  impartially  to  all.  Re  Passen- 
ger Tariffs,  2  I.  C.  C.  649,  2  I.  C.  R.  445.  Export  rates  ten 
cents  per  hundred  less  than  the  local  rates  held  illegal.  New 
York  Produce  Exchange  v.  New  York,  etc.,  R.  Co.,  3  I.  C.  C. 
137,  2  I.  C.  R.  13,  28,  553.  See  Texas,  etc..  R.  Co.  v.  Int.  Com. 
Com.,  162  U.  S.  197,  5  I.  C.  R.  405,  40  L.  Ed.  940,  16  Sup.  Ct. 
666.  Through  rates  are  not  required  to  be  made  on  a  mileage 
basis.  McMorran  v.  Grand  Trunk  R.  Co.,  3  I.  C.  C.  252,  2 
I.  C.  R.  14,  19,  604.  A  through  rate  may  be  less  than  the  sum 
of  the  locals.  Chicago,  Rock  Island  &  Pacific  R.  Co.  v.  Chicago 
&  Alton  R.  Co.,  3  I.  C.  C.  R.  450,  2  I.  C.  R.  581,  721.  See  also 
§  341,  supra.  Party  rates  less  than  individual  rates  illegal. 
Pittsburg,  etc.,  R.  Co.  v.  B.  &  O.  R.  Co.,  3  I.  C.  C.  465,  2  I. 
C.  R.  579,  720.  Commission  not  sustained  by  courts.  Int.  Com. 
Com.  V.  B.  &  O.  R.  Co.,  43  Fed.  Z7 ,  3  I.  C.  r'  192,  145  U.  S.  263, 
36  L.  Ed.  699,  4  I.  C.  R.  92,  12  Sup.  Ct.  844.  Carriers  may  make 
exclusive  contracts  for  sleeping  cars.  Worcester  Excursion  Co. 
V.  Penn.  R.  Co.,  3  I.  C.  C.  577,  1  I.  C.  R.  811,  2  id.  12,  792. 
Mere  quantity  of  shipments  not  alone  sufficient  to  affect  class- 
ification. 4  I.  C.  C.  R.  212,  2  I.  C.  R.  625,  3  id.  257.  Imported 
goods  are  not  entitled  to  any  preference  rate  from  the  port  of 
entry  to  destination  over  domestic  goods.  New  York  Board  of 
Trade,  etc.  v.  Penn.  R.  Co.,  4  I.  C.  C.  44;:,  2  I.  C.  R.  660,  734, 
755,  800,  3  id.  417.  See  Texas  &  Pac.  R.  Co.  v.  Int.  Com.  Com., 
162  U.  S.  197,  40  L.  Ed.  940,  16  Sup.  Ct.  666,  5  I.  C.  R.  405. 

— IG 


482  Acts  Regulating  Commerce,  [§  345. 

Classification  may  not  be  used  to  affect  discrimination.  Coxe  v. 
Lehigh  \'.  R.  Co.,  4  I.  C.  C.  535,  2  I.  C.  R.  195,  229,  3  id.  460. 
Discrimination  to  transport  free,  officials  and  persons  of  emi- 
nence. Re  Carriage  of  Persons  Free,  3  I.  C.  R.  612,  686,  717; 
Harvey  v.  L.  &  N.  R.  Co.,  5  I.  C.  C.  153,  2  I.  C.  R.  662,  3  id. 
793.  Hypothetical  weights  must  not  be  used  to  discriminate. 
Rice  V.  Cincinnati,  etc.,  R.  Co.,  5  I.  C.  C.  193,  3  I.  C.  R.  841. 
Section  compared  with  English  act.  Railroad  Com.  of  Ga., 
Trammell  et  al.  v.  Clyde  S.  S.  Co.,  5  I.  C.  C.  324,  4  I.  C.  R. 
120,  140.  Order  not  enforced.  Int.  Com.  Com.  v.  Western  & 
A.  R.  Co.,  88  Fed.  186,  93  Fed.  83,  35  C.  C.  A.  226,  181  U.  S. 
29,  45  L.  Ed.  729,  21  Sup.  Ct.  512.  Lower  rates  on  coal  to  spe- 
cial manufactures  illegal,  rates  should  not  vary  at  different  sea- 
sons of  the  year.  Re  Alleged  Unlawful  Charges  for  Transporta- 
tion of  Coal  by  L.  &  N.  R.  Co.,  5  L  C.  C.  466,  4  L  C.  R.  157. 
Illegal  to  discriminate  in  the  privileges  relating  to  delivery  of 
freight.  Phelps  v.  Texas  &  Pac.  R.  Co.,  6  I.  C.  C.  36,  4  I. 
C.  R.  44,  104,  363.  Not  illegal  to  make  a  different  rate  on  freight 
moving  in  opposite  directions  over  same  line.  Business  motive 
of  shipper  cannot  be  considered.  Duncan  v.  A.  T.  &  S.  F.  R. 
Co.  et  al.,  Duncan  v.  So.  Pac.  Co.  et  al.,  6  I.  C.  C.  85.  3  I.  C. 
R.  256,  4  I.  C.  R.  385 ;  MacLoon  v.  Boston  &  M.  R.  Co.,  9  I.  C.  C. 
R.  642.  May  make  excursion  rates  different  at  different  times. 
Cator  V.  So.  Pac.  Co.,  6  I.  C.  C.  R.  113.  4  I.  C.  R.  397.  A  car- 
rier cannot  legally  use  a  development  company  in  which  it  holds 
all  the  stock  to  purchase  and  ship  commodities  charging  nothing 
therefor.  Re  Alleged  Unlawful  Rates  and  Practices  in  Trans- 
portation of  Grain,  7  I.  C.  C.  ZZ.  Common  ownership  of  a 
carrier  company  and  a  land  company  will  not  prevent  the  land 
company  from  buying  tickets  from  the  carrier  at  full  prices  and 
selling  them  to  guests  of  its  hotel  at  half  price.  Wilson  v.  Rock 
Creek,  etc.,  R.  Co.,  7  I.  C.  C.  83.  Diff'erent  rate  by  cwt.  on 
train  loads  and  car  loads  discriminatory.  Paine  v.  Lehigh  Val- 
ley, etc.,  R.  Co.,  7  I.  C.  C.  218.  Reshipping  at  remainder  of  a 
through  rate  illegal.  Re  Alleged  Unlawful  Rates  and  Practices 
in  the  Transportation  of  Grain  and  Grain  Products,  7  I.  C.  C. 
240.  Re  Rates  and  Practices  of  the  M.  &  O.  R.  Co.,  9  I.  C. 
C.  2>72>;  Cannon  Falls,  etc.,  Co.  v.  Chicago  G.  W.  R.  Co.,  10 
I.  C.  C.  650.  See  question  suggested  but  not  decided.  Com- 
mercial Club  of  Omaha  v.  Chicago  &  R.  I.  R.  Co.,  6  I.  C.  C. 
647;  Duncan  et  al.  v.  N.  C.  &  St.  L.  R.  Co.,  16  I.  C.  C.  590. 


§  345.]  Annotated.  483 

Cannot  divide  rates  with  wagon  carriers.  Gary  v.  Eureka 
Springs  R.  Co.,  7  I.  C.  C.  286.  Terminal  charges  need  not  be 
exacted  on  all  products  alike  nor  at  all  markets.  Cattle  Raisers' 
Asso.  of  Texas  v.  Ft.  Worth,  etc.,  R.  Co.,  7  I.  C.  C.  513,  555-a. 
Commission's  order  not  enforced.  98  Fed.  173,  103  id,  249,  43 
C.  C.  A.  209,  186  U.  S.  320,  46  L.  Ed.  1182;  22  Sup.  Ct.  824. 
Storage  charges  as  well  as  other  rules  and  regulations  must  not 
be  discriminatory.  American  Warehousemen's  Asso.  z'.  111.  Cent. 
R.  Co.;  7  I.  C.  C.  556.  Goods  exported  may  move  to  ports  at 
a  less  rate  than  those  consumed  at  the  port.  Kemble  v.  Boston, 
etc.,  R.  Co.,  8  I.  C.  C.  110.  A  difference  in  the  rates  on  private 
cars  may  exist  when  the  use  thereof  is  different.  Carr  v.  N.  Pac. 
R.  Co.,  9  1.  C.  C.  1.  The  rule  that  as  distance  increases  the 
rate  per  ton  mile  shall  decrease  is  not  required  by  the  statute 
and  is  subject  to  exceptions  and  cjualifications.  Hilton  Lumber 
Co.  V.  Wilmington,  etc.,  R.  Co.,  9  I.  C.  C.  17.  To  entitle  a 
shipper  to  a  car  load  rating,  the  shipment  should  be  from  one 
consignor  to  one  consignee  under  one  bill  of  lading,  but  where 
the  consignee  is  the  owner,  it  is  immaterial  whether  his  title  was 
obtained  from  one  or  mo^e  persons.  Whether  a  carrier  can  deny 
car  load  rate  to  forwarding  agent  not  decided.  Buckeye  Buggy 
Co.  V.  Cleveland,  etc.,  R.  Co.,  9  I.  C.  C.  620;  Bell  Co.  v.  Balti- 
more, etc.,  R.,  9  I.  C.  C.  R.  632.  "Tap  line"  divisions  or  a  divi- 
sion of  a  through  rate  to  a  short  line,  such  line  being  a  common 
carrier,  is  legal.  Central  Yellow  Pine  Asso.  v.  Mcksburg  S.  &  P. 
R.  Co.,  10  I.  C.  C.  193.  See,  also.  Re  Transportation  of  Salt, 
10  I.  C.  C.  148.  Ownership  of  the  terminal  or  "tap  line"  im- 
material, but  the  division  must  be  reasonable.  Re  Divisions  of 
Joint  Rates  and  Other  Allowances  to  Terminal  Roads.  10  I. 
C.  C.  385.  Where  "tap  line"  not  a  common  carrier,  allowance 
illegal.  Central  Yellow  Pine  Asso.  v.  111.  Cent.  R.  Co.,  10  I.  C.  C. 
505,  506.  May  make  the  charge  on  a  minimum  of  100  pounds 
at  the  rate  taken  by  the  particular  commodity.  Wrigley  v.  Cleve- 
land, etc.,  R.  Co.,  10  I.  C.  C.  412.  "Under  substantially  similar 
circumstances  and  conditions"  defined  and  held  that  joint 
through  rates  less  than  the  sum  of  the  locals  must  be  open 
to  all.  Capital  City  Gas  Co.  v.  Central  Vermont,  etc.,  R.  Co.,  11 
I.  C.  C.  104.  Circumstances  and  conditions  substantially  dis- 
similar. City  Gas^Co.  v.  B.  &  O.  R.  Co.,  11  I.  C.  C.  R.  371,  379. 
Cotton  packed  by  the  round  bale  process  not  entitled  to  a  differ- 
ent rate  than  that  packed  in  square  bales.     Planters  Compress 


484  Acts  Regulating  Commerce,  [§  345. 

Co.  V.  Cleveland,  etc.,  R.  Co.,  11  I.  C.  C.  382.  A  reconsignment 
rate  may  be  higher  than  the  carrier's  proportion  of  the  through 
rate.  St.  Louis  Hay  &  Grain  Co.  v.  111.  Cent.  R.  Co.,  11  I.  C. 
C.  486,  4%;  Same  v.  M.  &  O.  R.  Co.,  id.  101.  There  should 
be  uniformity  in  the  relation  of  rates  on  commodities  dif- 
ferently packed.  Cannon  v.  "SI.  &  O.  R.  Co.,  11  I.  C.  C. 
537.  Carrier  can  not  charge  more  for  transferring  freight 
brought  from  another  line  than  for  that  originating  on  its  own 
line.  Blackwell  Milling  &  Elevator  Co.  v.  M.  K.  &  T.  R-y.  Co., 
12  I.  C.  C.  23;  Ponca  City  Milling  Co.  v.  M.  K.  &  T.  Ry.  Co., 
12  I.  C.  C.  26.  Party  rate  tickets  must  be  open  to  all.  Re 
Party  Rate  Tickets,  12  I.  C.  C.  95.  A  car  load  of  freight 
though  owned  by  dififerent  persons  and  known  as  "bulked  ship- 
ments" when  shipped  under  one  bill  of  lading  is  entitled  to  the 
regular  car.  load  rate.  California  Commercial  Asso.  v.  Wells 
Fargo  &  Co.,  14  I.  C.  C.  422;  Export  Shipping  Co.  v.  Wabash 
R.  Co.,  14  I.  C.  C.  437.  Order  not  enforced.  Delaware,  L.  & 
W.  R.  Co.  V.  Int.  Com.  Com.,  166  Fed.  499.  Section  two  in  effect 
prohibits  free  passes  except  for  the  classes  mentioned  in  section 
twenty-two.  Ex  parte  Koehler,  31  Fed.  315,  12  Sawy.  446.  Re 
Charge  to  Grand  Jury,  66  Fed.  146.  Unless  pass  is  used  no 
crime  is  committed.  United  States  v.  ^^lathews,  68  Fed.  880. 
Contract  for  rates  based  upon  the  amount  of  shipments  void. 
Burlington,  C.  R.  &  X.  R.  Co.  i:  Northwestern  Fuel  Co.,  31  Fed. 
652.  (Reversed  but  this  question  not  discussed.  Tozer  v. 
United  States,  52  Fed.  917)  ;  John  Hays  &  Co.  v.  Penn.  Co.,  12 
Fed.  309.  Followed  citing  English  cases.  Int.  Com.  Com.  v. 
Tex.  &  Pac.  Ry.  Co..  52  Fed.  187,  190;  Kinsley  v.  Bufifalo,  X. 
Y.  &  P.  R.  Co.,  37  Fed.  181 ;  United  States  7'.  Tozer,  39  Fed.  369, 
904.  Only  unjust,  undue  or  unreasonable  discrimination  forbid- 
den. Kentucky  &  I.  Bridge  Co.  v.  L.  &  X.  R.  Co.,  37  Fed. 
567,  624.  See  2  I.  C.  C.  162,  2  I.  C.  R.  102.  Xot  unlawful  for 
carrier  to  compress  cotton  en  route  when  privilege  open  to 
all.  Cowan  r.  Bond,  39  Fed.  54.  X"ot  discriminative  to  decline 
to  use  a  particular  live  stock  car.  United  States  v.  Delaware,  L. 
&  W.  R.  Co.,  40  Fed.  101.  Party  rate  tickets  at  less  rate  than  for 
a  single  ticket  legal.  Int.  Com.  Com.  v.  B.  &  O.  R.  Co.,  43  Fed. 
37,  46.  Affirmed,  145  U.  S.  263,  36  L.  Ed.  699,  12  Sup.  Ct.  844. 
May  make  a  difference  in  rates  for  limited  and  unlimited  tickets. 
United  States  v.  Eagan,  47  Fed.  112.  Illegal  to  charge  less  on 
freight  from  Liverpool  than  from  Xew  York.  Xew  Orleans,  etc., 


§  345.]  Annotated.  485 

to  San  Francisco.  Int.  Com.  Com.  v.  Tex.  &  Pac.  Ry.  Co.,  52 
Fed.  187.  Affirmed,  57  Fed.  948,  6  C.  C.  A.  653,  20  U.  S.  App. 
1,  4  I.  C.  R.  408.  Reversed,  Tex.  &  Pac.  Ry.  Co.  v.  Int.  Com. 
Com.,  162  U.  S.  197,  40  L.  Ed.  940,  16  Sup.  Ct.  666.  That  cotton 
reached  Mobile  by  boat  is  no  reason  for  charging  more  on  a  ship- 
ment to  New  Orleans  than  was  charged  on  cotton  brought  to 
Mobile  by  other  carriers.  Bigbee  &  Warrior  Rivers  Packet  Co. 
V.  Mobile  &  Ohio  R.  Co.,  60  Fed.  545.  Rebate  to  one  not  a  crime 
unless  refused  to  others.  United  States  v.  Hanley,  71  Fed.  672. 
No  rigid  theoretical  rules  can  be  adopted  to  determine  the  ques- 
tion of  discrimination.  Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  73 
Fed.  409.  Can  not  charge  full  local  rate  on  freight  delivered  to 
one  carrier,  when  the  proportion  of  the  through  rate  is  charged 
to  another.  Augusta  S.  R.  Co.  v.  Wrightsville  &  T.  R.  Co.,  74 
Fed.  522.  Purpose  of  section  discussed.  Int.  Com.  Com.  v. 
Alabama  M.  Ry.  Co.,  74  Fed.  715,  21  C.  C.  A.  51,  41  U.  S.  App. 
453,  5  I.  C.  R.  685.  Affirming  69  Fed.  227.  Affirmed,  168  U. 
S.  144,  42  L.  Ed.  414,  18  Sup.  Ct.  45.  Cartage  is  separated  from 
the  general  charges  referred  to  in  sections  one,  two,  three  and 
four  of  act.  Detroit,  etc.,  Ry.  Co.  v.  Int.  Com.  Com.,  74  Fed. 
803,  815,  21  C.  C.  A.  103,  43  U.  S.  App.  308.  Reversing  57  Fed. 
1005,  4  I.  C.  R.  722.  Affirmed,  167  tJ.  S.  633,  42  L.  Ed.  306,  17 
Sup.  Ct.  986.  What  should  be  stated  in  a  petition  to  recover 
damages  for  discrimination.  Kinnavey  v.  Terminal  R.  Asso. 
of  St.  Louis,  81  Fed.  802.  Section  deals  with  preferences  be- 
tween shippers  and  not  between  localities.  Int.  Com.  Com.  v. 
Western  &  A.  R.  Co.,  88  Fed.  186.  Affirmed,  93  Fed.  83,  35  C. 
C.  A.  217,  181  U.  S.  29,  45  L.  Ed.  729,  21  Sup.  Ct.  512,  refusing 
to  enforce  order  in  Railroad  Com.  of  Ga.  v.  Clyde  Line  S.  S.  Co., 
5  I.  C.  C.  324,  4  I.  C.  R.  120.  Mere  offer  of  discrimination  not 
an  offense.  Lehigh  Valley  R.  Co.  v.  Rainey,  112  Fed.  487,  re- 
fusing motion  for  new  trial.  See  99  Fed.  596.  Carriers  not 
recjuired  to  give  same  rate  to  forwarding  agents  as  to  owners  of 
car  load  freight.  Lundquist  v.  Grand  Trunk  W.  Ry.  Co.,  121 
Fed.  915 ;  Delaware,  L.  &  W.  R.  Co.  v.  Int.  Com.  Com.,  166  Fed. 
499.  Contra  under  English  and  Canadian  Act.  Packed  Par- 
cels Case.  Great  W.  R.  W.  Co.  v.  Sutton  L.  R.,  4  H.  L.  226, 
MacMurchy  &  Denison's  Canadian  Ry.  Law  496.  Can  not  dis- 
criminate in  favor  of  government  in  rates  to  its  soldiers.  United 
States  V.  Chicago  &  N.  W.  Ry.  Co.,  127  Fed.  785,  62  C.  C.  A. 
465.     A  carrier  may  in  good  faith  buy  a  commodity  and  trans- 


486  Acts  Regulating  Commerce,  [§  345. 

port  it  at  less  than  the  regular  rate.  Int.  Com.  Com.  v.  Chesa- 
peake &  O.  Ry.  Co.,  128  Fed.  59.  Affirmed  same  case,  but  this 
proposition  disapproved,  200  U.  S.  361,  50  L.  Ed.  515,  26  Sup. 
Ct.  272.  Classification  must  be  without  discrimination.  Int. 
Com.  Com.  v.  Cincinnati,  H.  &  D.  Ry.  Co.,  146  Fed.  559.  Af- 
firmed. Cincinnati,  H.  &  D.  Ry.  Co.  v.  Int.  Com.  Com.,  206  U.  S. 
142,  51  L.  Ed.  995,  27  Sup.  Ct.  648.  Reconsignment  rate  is  vio- 
lation of  section.  St.  Louis  Hay  &  Grain  Co.  v.  So.  Ry.  Co.,  149 
Fed.  609.  Affirmed.  So.  Ry.  Co.  v.  St.  Louis  Hay  &  Grain  Co., 
153  Fed.  728.  C.  C.  A.  Reversed,  214  U.  S.  297,  53  L.  Ed.  1004, 
29  Sup.  Ct.  678.  "Discrimination"  defined.  United  States  v. 
Wells  Fargo  Ex.  Co.,  161  Fed.  606.  Discrimination  illegal  at 
common  law.  Atchison,  T.  &  S.  F.  R.  Co.  v.  Denver  &  N.  O.  R. 
Co.,  110  U.  S.  667,  28  L.  Ed.  291,  4  Sup.  Ct.  185.  Service  for 
local  haul  hot  the  same  as  for  through  haul  covering  the  local 
as  well  as  additional  haul.  L'nion  Pacific  Ry.  Co.  v.  United 
States,  117  U.  S.  355,  29  L.  Ed.  920,  6  Sup.  Ct.  772.  The  dis- 
crimination must  be  unjust,  undue  or  unreasonable,  though  a 
rate  reasonable  under  section  one  may  violate  sections  two  and 
three.  Int.  Com.  Com.  v.  Baltimore  &  O.  R.  Co.,  145  U.  S.  263, 
36  L.  Ed.  699,  12  Sup.  Ct.  844,  affirming  43  Fed.  37.  Carriers 
not  released  from  liability  to  innocent  parties  to  a  bill  of  lading 
because  a  rebate  is  allowed.  Merchants  Cotton  Compress  and 
Storage  Co.  v.  Ins.  Co.  of  North  America,  151  U.  S.  368,  38  L. 
Ed.  195,  206,  14  Sup.  Ct.  367.  Ocean  competition  may  make  a 
difl^erent  circumstance.  Section  discussed.  Statement  made  that 
it  was  modeled  on  section  90,  English  Act  of  1845,  and  English 
cases  cited.  Tex.  &  Pac.  R.  Co.  v.  Int.  Com.  Com.,  162  U.  S.  197, 
213,  219,  222,  224,  225,  40  L.  Ed.  940,  945,  947,  948,  949,  16 
Sup.  Ct.  666.  Reversing  57  Fed.  948,  6  C.  C.  A.  653,  20  U.  S. 
App.  1,  4  I.  C.  R.  408.  Prior  to  the  act  to  regulate  commerce 
recovery  could  not  be  had  for  discrimination  unless  the  charge 
was  unreasonable.  Parsons  v.  Chicago  &  N.  W.  R.  Co.,  167  U.  S. 
447,  42  L.  Ed.  231,  17  Sup.  Ct.  887.  Allowance  of  cartage  to 
one  and  not  to  all  violates  section.  Wight  v.  United  States,  167 
U.  S.  512,  42  L.  Ed.  258,  17  Sup.  Ct.  ^22.  "Under  substantially 
similar  circumstances  and  conditions"  refers  to  matter  of  carriage 
and  does  not  include  competition,  id.  While  this  is  true  of  sec- 
tion two,  it  is  not  true  of  section  four.  Int.  Com.  Com.  v.  Ala- 
bama M.  Ry.  Co.,  168  U.  S.  144,  42  L.  Ed.  414,  18  Sup.  Ct.  45  ; 
East  Tenn.,  Va.  &  Ga.  Ry.  Co.  v.  Int.  Com.  Com..  181  U.  S.  1, 


§  345.]  Annotate:d.  487 

45  L.  Ed.  719,  21  Sup.  Ct.  516;  Int.  Com.  Com.  v.  Clyde  S.  S. 
Co.,  181  U.  S.  29,  45  L.  Ed.  729,  21  Sup.  Ct.  512.  See  as  to 
effect  of  free  cartage  on  section  four.  Int.  Com.  Com.  v.  Detroit, 
etc.,  R.  Co.,  167  U.  S.  633,  42  L.  Ed.  306,  11  Sup.  Ct.  986.  Car- 
rier cannot  escape  from  provisions  of  section  by  electing  to  be  a 
dealer  in  commodities  shipped.  New  York,  N.  H.  &  H.  R.  Co. 
V.  Int.  Com.  Com.,  200  U.  S.  361,  391,  392,  50  L.  Ed.  515,  521, 
26  Sup.  Ct.  272.  Commission  has  power  to  order  carriers  to 
cease  from  violating  act  by  discriminating  between  persons  or 
localities.  Cincinnati,  H.  &  D.  Ry.  Co.  v.  Int.  Com.  Com.,  206  U. 
S.  142,  51  L.  Ed.  995,  27  Sup.  Ct.  648. 

Notes  of  Decisions  Rendered  Since  1909. 

May  not  discriminate  in  favor  of  school  children.  Commu- 
tation Tickets  to  School  Children,  17  I.  C.  C.  144,  but  see  Int. 
Ry.  Co.  V.  Mass.,  207  U.  S.  79,  52  L.  Ed.  Ill,  28  Sup.  Ct.  26.  No 
different  rate  on  returned  shipment  except  where  shipment  re- 
fused by  consignee.  Reduced  Rates  on  Returned  Shipments,  19 
I.  C.  C.  409,  416.  Not  violated  by  contract  with  only  one  auc- 
tion company.  Southwestern  Produce  Distributor  v.  W.  R.  R. 
Co.,  20  I.  C.  C.  458.  Ownership  not  a  reason  for  dift'erent  ap- 
plication of  rates.  California  Commercial  Ass'n  z^.  Wells,  Fargo  & 
Co.,  21  I.  C.  C.  300  citing  cases.  Section  directed  against  "pref- 
erential charges."  Commutation  Rate  case,  21  I.  C.  C.  428,  431. 
Cited  in  discussing  demurrage  charges.  Demurrage  Charges  in 
State  of  CaHfornia,  25  I.  C.  C.  314,  323.  Section  applies  to  ship- 
ment "over  the  same  line,  the  same  distance,  under  the  same  cir- 
cumstances of  carriage."  Import  Rates  on  Manganese  Ore,  25  I. 
C.  C.  663,  668  citing  Int.  Com.  Com.  v.  B.  &  O.  R.  Co.,  225  U.  S. 
326,  56  L.  Ed.  1107,  32  Sup.  Ct.  742;  Wight  v.  U.  S.,  167  U.  S. 
512,  518,  42  L.  Ed.  258,  17  Sup.  Ct.  822.  Discrimination  not 
made  by  the  defendant  carrier  but  by  other  carrier.  Coke  Pro- 
ducers Ass'n  V.  B.  &  O.  R.  R.  Co.,  27  I.  C.  C.  125,  144,  citing 
Ashland  Fire  Brick  Co.  v.  S.  Ry.  Co.,  22  I.  C.  C.  115,  120;  In- 
diana Steel  &  Wire  Co.  v.  C.  R.  I.  &  P.  Ry.  Co.,  16  I.  C.  C.  155, 
Railroad  Com.  of  Tenn.  v.  A.  A.  R.  R.  Co..  17  I.  C.  C.  418.  Sec- 
tion discussed  and  "like"  construed.  Board  of  Trade  of  Chicago 
V.  C.  &  A.  R.  R.  Co.,  27  I.  C.  C.  530,  534.  Difference  in  switch- 
ing charges,  traffic  moving  from  same  point  of  origin  violates 
section.  Richmond  Chamber  of  Commerce  v.  S.  A.  L.  Ry.  Co., 
30  I.  C.  C.  552.    Section  does  not  limit  Elkins  Act,  Hocking  Val- 


488  Acts  Regulating  Commerce,  [§  346. 

ley  Ry.  Co.  v.  U.  S.,  210  Fed.  735,  127  C.  C.  A.  285  affirming. 
U.  S.  V.  Hocking  Valley  Ry.  Co.,  194  Fed.  234,  and  same  ques- 
tion Sunday  Creek  Co.  v.  United  States,  210  Fed.  747,  127  C. 
C.  A.  — .  Violator  to  pay  bonus  for  erecting  plant  at  particular 
place.  U.  S.  V.  Union  Stock  &  Transit  Co.,  226  U.  S.  286,  57 
L.  Ed.  226,  2>Z  Sup.  Ct.  83,  modifying  same  styles  case,  192  Fed. 
330,  Opin.  Com.  Ct.  No.  15,  p.  189.  Allowance  "for  transfer" 
does  not  violate.  American  Sugar  Refining  Co.  z>.  Delaware,  L. 
&  W.  R.  Co.,  207  Fed.  733,  125  C.  C.  A.  251,  reversing  same 
styled  case,  200  Fed.  652.  Rebate  from  published  tariff  for  haul 
from  mine  violates.  Alitchell  Coal  &  Coke  Co.  v.  Penn.  R.  Co., 
230  U.  S.  247,  57  L.  Ed.  1472,  2>Z  Sup.  Ct.  916,  modifying  judg- 
ment in  same  styled  case,  183  Fed.  908.  Forwarding  agent  a 
person  within  meaning  of  Section.  Int.  Com.  Com.  v.  D.  L.  & 
W.  Ry.  Co..  220  U.  S.  235,  55  L.  Ed.  448,  31  Sup.  Ct.  392.  Sec- 
tion referred  to  in  its  application  to  the  long  and  short  haul 
clause.  U.  S.  v.  A.  T.  &  S.  F.  Ry.  Co.,  Inter-mountain  case,  234 
U.  S.  476,  58  L.  Ed.  1408,  34  Sup.  Ct.  986,  reversing  the  Com. 
Ct.  in  A.  T.  &  S.  F.  Ry.  Co.  v.  U.  S.,  191  Fed.  856,  Opin.  Com. 
Courts  Nos.  50,  51,  p.  229  and  sustaining  the  Commission  in  Rail- 
road Com.  of  Nevada  v.  So.  Pac.  Co.,  21  I.  C.  C.  329,  Spokane 
V.  N.  Pac.  Ry.  Co.,  21  I.  C.  C.  400.  Section  2  and  3  contrasted. 
Curry  &  Whyte  v.  D.  &  I.  R.  R.  Co.,  32  I.  C.  C.  162,  168.  Sec- 
tion not  violated  by  exacting  same  rate  on  cotton  packed  to  a 
different  density.  American  Round  Bale  Press  Co.  v.  A.  T.  &  S. 
F.  R.  Co.,  32  I.  C.  C.  458,  462. 

§  346.  Undue  and  Unreasonable  Preference  Prohibited. 
— That  it  shall  be  unlawful  for  any  common  carrier  subject  to 
the  provisions  of  this  act  to  make  or  give  any  undue  or  unrea- 
sonable preference  or  advantage  to  any  particular  person,  com- 
pany, firm,  corporation,  or  locality,  or  any  particular  description 
of  traffic,  in  any  respect  whatsoever,  or  to  subject  any  particular 
person,  company,  firm,  corporation,  or  locality,  or  any  particular 
description  of  traffic,  to  any  undue  or  unreasonable  prejudice  or 
disadvantage  in  any  respect  whatsoever. 

First  paragraph  of  section  3  of  the  original  act. 

This  provision  substantially  follows  language  in  section  two 
of  English  Traffic  Act  of  1854,  and  section  eleven  of  the  act 
of  1873.    The  English  act  provides : 

Every  railway  company,  canal  company,  and  railway  and  canal 
company,  shall,  according  to  their  respective  powers,  afford  all 


§  346.]  Annotated.  489 

reasonable  facilities  for  the  receiving  and  forwarding  and  deliv- 
ering of  traffic  upon  and  from  the  several  railways  and  canals 
belonging  to  or  worked  by  such  companies  respectively,  and  for 
the  return  of  carriages,  trucks,  boats,  and  other  vehicles ;  and  no 
such  company  shall  make  or  give  any  undue  or  unreasonable 
preference  or  advantage  to  or  in  favour  of  any  particular  person 
or  company,  or  any  particular  description  of  traffic,  in  any  re- 
spect whatsoever,  nor  shall  any  such  company  subject  any  partic- 
ular person  or  company,  or  any  particular  description  of  traffic, 
to  any  undue  or  unreasonable  prejudice  or  disadvantage  in  any 
respect  whatsoever ;  and  every  railway  company  and  canal  com- 
pany, and  railway  and  canal  company  having  or  working  rail- 
ways or  canals  which  form  part  of  a  continuous  line  of  railway 
or  canal  or  railway  and  canal  communication,  or  which  have  the 
terminus,  station,  or  wharf  of  the  one  near  the  terminus,  station, 
or  wharf  of  the  other,  shall  afford  all  due  and  reasonable  facili- 
ties for  receiving  and  forwarding  all  the  traffic  arriving  by  one 
of  such  railways  or  canals  by  the  other,  without  any  unreason- 
able delay,  and  without  any  such  preference  or  advantage,  or 
prejudice  or  disadvantage,  as  aforesaid,  and  so  that  no  obstruc- 
tion may  be  offered  to  the  public  desirous  of  using  such  railways 
or  canals  or  railways  and  canals  as  a  continuous  line  of  commu- 
nication, and  so  that  all  reasonable  accommodation  may,  by 
means  of  the  railways  and  canals  of  the  several  companies,  be 
at  all  times  afforded  to  the  public  in  that  behalf. 

Browne  &  Theobald's  Railway  Laws,  405,  Halsbury's  Laws  of 
England,  Vol.  4,  p.  76. 

Religious  teachers  in  view  of  section  2  of  act  may  receive  spe- 
cial reduced  rates.  Re  Religious  Teachers,  1  L  C.  C.  2L  Dis- 
count may  not  be  given  large  shippers.  Providence  Coal  Co.  v. 
Providence,  etc.,  R.  Co.,  1  L  C.  C.  107,  1  L  C.  R.  316,  363.  A 
carrier  operating  parallel  lines  should  furnish  corresponding  ad- 
vantages to  each  line.  Boards  of  Trade  Union  v.  Chicago,  etc., 
R.  Co.,  1  L  C.  C.  215,  1  L  C.  R.  608.  Undue  preference  illegal 
although  not  wholly  voluntary.  Raymond  v.  Chicago,  M.  &  St. 
P.  R.  Co.,  1  L  C.  C.  230,  1  L  C.  R.  627.  Unreasonable  preference 
illegal  whether  accomplished  by  device  or  directly.  Scofield  v. 
Lake,  etc.,  R.  Co.,  2  L  C.  C.  90,  1  L  C.  R.  593,  2  id.  67.  Sub- 
scriptions to  build  a  railroad  no  legal  reason  to  affect  rates  fa- 
vorably to  subscribing  territory.  Lincoln  Board  of  Trade  v.  U. 
P.  R.  Co.,  2  L  C.  C.  147,  2  I.  C.  R.  95.     Uniform  rate  on  milk 


490  Acts  Regulating  Commerce,  [§  346. 

from  all  stations  within  two  hundred  miles  of  New  York  not 
imjust  discrimination.  Howell  v.  New  York,  etc.,  R.  Co.,  2  I. 
C.  C.  272,  2  I.  C.  R.  162.  Rule  discussed  for  making  rates  be- 
tween communities  in  accord  with  section.  Detroit  Board  of 
Trade  v.  Grand  Trunk  Ry.,  2  I.  C.  C.  315,  2  I.  C.  R.  199.  Rates 
should  be  known  and  announced  publicly  as  to  all  places  and 
persons.  Re  Tarififs  Transcontinental  Lines,  2  I.  C.  C.  324,  2  I. 
C.  R.  203.  Rate  per  ton  mile  may  vary  with  distance.  New  Olr- 
leans  Cotton  Exchange  v.  Cincinnati,  etc.,  R.  Co.,  2  I.  C.  C. 
375,  2  I.  C.  R.  289;  Same  v.  111.  Cent.  R.  Co.,  3  I.  C.  C.  534,  2  I. 
C.  R.  777 .  Circumstances  may  be  so  different  as  to  justify  de- 
viations from  rule  of  equal  mileage  on  different  branches  of  the 
same  road,  but  burden  to  show  such  circumstances  on  the  car- 
rier. Logan  V.  Chicago  &  N.  W.  R.  Co.,  2  I.  C.  C.  604,  2  L  C. 
R.  431.  Through  rates  not  required  to  be  made  on  a  mileage 
basis.  McMorran  v.  Grand  Trunk  R.  Co.,  3  L  C.  C.  252,  2  L 
C.  R.  604.  Separation  of  races  legal  but  accommodations  must 
be  equal.  Heard  v.  Ga.  R.  Co.,  3  I.  C.  C.  Ill,  2  I.  C.  R.  508; 
see  same  case,  1  L  C.  C.  428,  1  L  C.  R.  719 ;  Cozartt  v.  So.  Ry. 
Co.,  16  L  C.  C.  226;  Gaines  v.  Seaboard  A.  L.  Ry.,  16  I.  C.  C. 
471.  May  make  a  reasonable  difference  between  C.  L.  and  L.  C. 
L.  shipments.  Car  load  ratings  should  be  equal,  whether  one  or 
more  consignors  or  consignees.  Thurber  v.  New  York,  etc.,  R. 
Co.,  3  L  C.  C.  473,  2  L  C.  R.  742.  Special  tariffs  for  emigrants 
only  illegal.  Elvey  v.  111.  Cent.  R.  Co.,  3  I.  C.  C.  652,  2  I.  C.  R. 
804.  Should  be  no  distinction  between  the  rates  and  allowances 
on  oil  shipped  in  tank  cars  and  in  barrels.  Rice  v.  Western  N.  Y. 
etc.,  R.  Co.,  4  I.  C.  C.  131,  3  I.  C.  R.  162;  see  also  5  I.  C.  C.  193, 
3  I.  C.  R.  841,  6  I.  C.  C.  455.  Discrimination  is  not  legalized 
because  large  investments  have  been  made  under  it.  Board  of 
Trade  of  Chicago  v.  Chicago  &  Alton  R.  Co.,  4  I.  C.  C.  158, 

3  I.  C.  R.  233.  Mere  quantity,  other  than  a  recognized  unit  of 
carriage,  no  reason  for  difference  in  rate.    Harvard  v.  Penn.  Co., 

4  I.  C.  C.  212,  3  I.  C.  R.  257.  A  dift'erential  between  wheat 
and  wheat  flour  long  maintained  may  be  continued.  Kauffman 
V.  Mo.  Pac.  R.  Co.,  4  I.  C.  C.  417,  3  I.  C.  R.  400.  Rates  should 
be  relatively  just  both  as  to  localities  and  different  kinds  of 
traffic.  Squire  v.  Mich.  Cent.  R.  Co.,  4  I.  C.  C.  611,  3  I.  C.  R. 
515.  Water  competition  when  freight  can  move  over  the  longer 
distance  point  justifies  a  less  rate  for  the  longer  than  the 
shorter  haul.     James  &  Mayer  Buggy  Co.  v.  Cincinnati,  etc.,  R. 


§  346.]  Annotated.  491 

Co.,  4  I.  C.  C.  744,  3  I.  C.  R.  682.  Order  not  enforced.  Int. 
Com.  Co.  V.  Cincinnati,  etc.,  R.  Co.,  56  Fed.  925.  Circuit  court 
reversed.  13  U.  S.  App.  720,  162  U.  S.  184,  40  L.  Ed.  935,  16 
Sup.  Ct.  700.  Section  compared  with  English  act.  Railroad 
Com.  of  Ga.  Trammel  et  al.  v.  Clyde  S.  S.  Co.,  ,5  I.  C.  C.  324, 
4  I.  C.  R.  120,  140.  Order  not  enforced.  Int.  Com.  Com.  v. 
Western  &  A.  R.  Co.,  88  Fed.  186,  93  Fed.  83,  35  C.  C.  A.  226, 
181  U.  S.  29,  45  L.  Ed.  729,  21  Sup.  Ct.  512.  Rates  on  similar 
commodities  should  not  greatly  differ.  Michigan  Box  Co.  v. 
Flint,  etc.,  R.  Co.,  6  I.  C.  C.  335.  "Unreasonable,"  "unjust" 
and  similar  terms  used  in  section  defined.  Daniels  v.  Chicago 
etc.,  R.  Co.,  6  I.  C.  C.  458.  Excess  of  manufacturing  cost  at 
one  point  over  another  should  not  affect  the  relative  rates.  Colo- 
rado Fuel  &  Iron  Co.  v.  So.  Pac.  Co.,  6  I.  C.  C.  488.  Order 
not  enforced.  So.  Pac.  Co.  v.  Fuel  Co.,  101  Fed.  779,  42  C.  C. 
A  12.  Terms  used  in  section  discussed  and  held  to  imply  com- 
parison. Page  V.  Deleware,  etc.,  R.  Co.,  6  I.  C.  C.  548 ;  see  6 
I.  C.  C.  148,  4  I.  C.  R.  425 ;  Int.  Com.  Com.  v.  Deleware,  etc., 
R.  Co.,  64  Fed.  723.  Rates  from  Texas  common  points  to  Wich- 
ita higher  than  to  Kansas  City  illegal.  Johnston-Larimer  Dry 
Goods  Co.  V.  A.  T.  &  S.  F.  R.  Co.,  6  I.  C.  C.  568;  see  also  10 
I.  C.  C.  460,  12  I.  C.  C.  47,  188.  Should  not  disregard  dis- 
tances and  natural  advantages.  Commercial  Club  of  Omaha  v. 
Chicago  &  R.  I.  R.  Co.,  6  I.  C.  C.  647.  Blanket  rate  to  New 
York  on  milk  from  towns  of  diff'erent  distances  held  violative 
on  this  section  though  group  rates  based  on  groups  reasonably 
arranged  legal.  Milk  Producers  Protective  Asso.  v.  Delaware, 
etc.,  R.  Co.,  7  I.  C.  C.  92,  164  and  cases  cited.  "A  city  is  en- 
titled to  the  benefit  of  its  location."  Freight  Bureau  of  Cin- 
cinnati V.  C.  N.  O.  &  T.  P.  R.  Co.,  7  I.  C.  C.  180,  189.  The 
law  permits  railroads  to  meet,  not  to  extinguish,  water  competi- 
tion. Brewer  v.  L.  &  N.  R.  Co.,  7  I.  C.  C.  224.  Order  not  en- 
forced. 84  Fed.  258.  Undue  i)reference  means  preference 
that  is  appreciable  and  certain.  Contract  for  rates  not  enforced. 
Commercial  Club  of  Omaha  v.  Chicago  &  N.  W.  R.  Co.,  7  I.  C. 
C.  386;  see  also  Rhinelander  Paper  Co.  v.  N.  Pac.  R.  Co.,  13 
T.  C.  C.  633.  Higher  rates  from  New  Orleans  to  La  Grange 
than  to  points  similar  in  size  and  beyond  La  Grange  illegal. 
Callaway  v.  L.  &  N.  R.  Co.,  7  I.  C.  C.  431.  Order  enforced  by 
Circuit  Court,  102  Fed.  709.  Reversed  in  Supreme  Court.  Int. 
Com.  Com.  v.  L.  &  N.  R.  Co.  (La  Grange  Case)  190  U.  S.  273, 


492  Acts  Regulating  Commerce,  [§  346, 

42  L.  Ed.  1047,  23  Sup.  Ct.  687.  Differential  held  illegal. 
Chamber  of  Commerce  of  Milwaukee  v.  Chicago,  M.  &  St.  P.  R. 
Co.,  7  I.  C.  C.  481,  511.  Terminal  charges  constituting  a  viola- 
tion of  section.  Cattle  Raisers'  Asso.  v.  Ft.  W.  &  D.  City  R. 
Co.,  7  I.  C.  C.  555-a.  Order  not  enforced.  98  Fed.  173,  103 
Fed.  249,  43  C.  C.  A.  209,  186  U.  S.  320,  46  L.  Ed.  1182,  22  Sup. 
Ct.  824.  Differentials  to  Baltimore  and  Philadelphia  under  New- 
York  legal.  New  York  Produce  Ex.  v.  B.  &  O.  R.  Co.,  7  I.  C.  C. 
612,  658,  661,  667.  Whether  or  not  competition  is  such  as  to 
relieve  carriers  from  restraints  of  section  a  question  of  fact. 
Phillips,  Bailey  &  Co.  v.  L.  &  N.  R.  Co.,  8  I.  C.  C.  93.  Dis- 
crimination held  to  violate  section.  Re  Alleged  Violations  by  St. 
L.  &  S.  F.  Ry.  Co.,  8  I.  C.  C.  290.  May  be  a  differential  be- 
tween corn  and  wheat  and  their  products  but  must  be  reasonable. 
Board  of  R.  R.  Comr's.  of  Kansas  v.  A.  T.  &  S.  F.  Ry.  Co.,  8  1. 
C.  C.  304;  Mayor,  etc.,  of  Wichita  v.  Mo.  Pac.  R.'Co.,  10  I. 
C.  C.  35,  and  cases  there  cited.  A  station  in  Chicago,  a  shorter 
distance  point  should  not  have  a  higher  rate  than  the  union 
depot  in  Chicago.  Chicago  Fire  Proof,  etc.,  Co.  v.  Chicago  & 
N.  W.  R.  Co.,  8  I.  C.  C.  316.  Carriers  have  no  right  to  create 
new  markets  at  expense  of  old  ones.  Savannah  Bureau  etc.  v. 
L.  &  N.  R.  Co.,  8  I.  C.  C.  Z77.  Order  enforced.  Int.  Com, 
Com.  V.  L.  &  N.  R.  Co.,  118  Fed.  613.  Relative  rates  between 
Danville  and  Lynchburg  illegal.  Danville  v.  So.  Ry.  Co.,  8  I. 
C.  C.  409.  Order  not  enforced.  Int.  Com.  Com.  v.  So.  Ry.  Co.^ 
117  Fed.  741,  122  Fed.  800,  60  C.  C.  A.  540.  Rates  must  not 
destroy  competition  between  cities.  Board  of  Trade  of  Hampton 
V.  N.  C.  &  St.  L.  R.  Co.,  8  I.  C.  C.  503.  Order  not  enforced. 
Int.  Com.  Com.  v.  N.  C.  &  St.  L.  R.  Co.,  120  Fed.  934.  Unjust 
discrimination  illegal  although  no  direct  injury.  Kindel  v.  A. 
T.  &  S.  F.  Ry.  Co.,  8  I.  C.  C.  608,  9  I.  C.  C.  606.  Remedy  for 
unlawful  rates  inadequate.  McGrew  v.  M.  P.  R.  Co.,  8  I.  C.  C. 
630.  Rates  violative  of  section.  Hilton  Lumber  Co.  v.  Wil- 
mington, etc.,  R.  Co.,  9  I.  C.  C.  17.  Carriers  may  recognize 
natural,  but  ordinarily  must  not  create  artificial  advantages. 
Holdzkom  v.  Mich.  Cent.  Ry.  Co.,  9  I.  C.  C.  42.  54.  Preference 
to  be  illegal  must  be  the  result  of  action  of  carriers.  Wilming- 
ton Tariff  Asso.  v.  Cincinnati,  Portsmouth,  etc.,  R.  Co.,  9  I.  C. 
C.  118,  157.  Order  not  enforced.  124  Fed.  624.  Illegal  dis- 
crimination in  failure  to  publish  through  rates.  Johnson  v. 
Chicago,    Saint  Paul,    etc.,  R.  Co.,  9  I.  C.    C.    221.  Milling  in. 


§  346.]  Annotated.  493 

transit  a  privilege  that  the  carriers  can  not  be  forced  to  give. 
Diamond  Mills  Co.  v.  Boston  &  M.  R.  Co.,  9  I.  C.  C.  311.  Dif- 
ferentials between  C.  L.  and  L.  C.  L.  must  be  reasonable.  Busi- 
ness Men's  League  of  St.  Louis  v.  A.  T.  &  S.  F.  R.  Co.,  9  L 
C.  C.  318,  359.  Facts  constituting  discrimination.  Mayor,  etc., 
of  Wichita  v.  A.  T.  &  S.  F.  R.  Co.,  9  I.  C.  C.  534;  Same  v.  Chi- 
cago &  R.  L  R.  Co.,  9  I.  C.  C.  569.  Rates  unduly  dis- 
criminatory. Marten  v.  L.  &  N.  R.  Co.,  9  L  C.  C.  581 ;  Kindel 
V.  A.  T.  &  S.  F.  R.  Co.,  9  I.  C.  C.  606.  Higher  charge  on  coal 
because  of  method  of  loading  illegal.  Glade  Coal  Co.  v.  B.  &  O. 
R.  Co.,  10  L  C.  C.  226.  Circumstances  justifying  different 
charges.  Aberdeen  Group  Commercial  Asso.  v.  M.  &  O.  R.  Co., 
10  I.  C.  C.  289.  Should  not  make  a  different  rate  per  hun- 
dred on  cattle  in  car  lots  and  in  ten  car  lots.  New  Orleans  Live 
Stock  Ex.  V.  T.  &  P.  Ry.  Co.,  10  L  C.  C.  327.  Difference  in 
rate  greater  than  competitive  conditions  justified.  Gardner  v. 
So.  Ry.  Co.,  10  L  C.  C.  342.  No  reasons  to  charge  more  on  live 
stock  than  on  live  stock  products.  Chicago  Live  Stock  Ex.  v.  Chi- 
cago Great  W.  R.  Co.,  10  I.  C.  C.  428.  Circuit  court  contra. 
Int.  Com.  Com.  v.  Chicago  Great  W.  R.  Co.,  141  Fed.  1003,  209 
U.  S.  108,  52  L.  Ed.  705,  28  Sup.  Ct.  Differentials  between 
two  cities  should  not  be.  affected  by  point  of  origin.  Mershon 
V.  Cent.  R.  R.  of  N.  J.,  10  I.  C.  C.  456.  Higher  rate  to  Wichita 
than  the  longer  distance  to  Kansas  City  justified,  but  differen- 
tials too  great.  Lehman-Higginson  Grocery  Co.  v.  A.  T.  & 
S.  F.  R.  Co.,  10  I.  C.  C.  460.  Should  be  no  higher  rates  on 
shingles  than  lumber.  Duluth  Shingle  Co.  v.  Duluth,  etc.,  R. 
Co.,  10  I.  C.  C.  489.  Refusal  to  grant  divisions  to  "tap  lines" 
east  of  the  Mississippi  River  not  illegal  because  granted  by 
other  carries  west  of  the  river.  Central  Yellow  Pine  Asso.  v. 
111.  Cent.  R.  Co.,  10  I.  C.  C.  505.  Order  enforced.  111.  Cent.  R. 
Co.  V.  Int.  Com.  Com.,  206  U.  S.  441,  51  L.  Ed.  1128,  27  Sup. 
Ct.  700.  Combination  rate  should  not  be  less  than  the  straight 
rate.  Cannon  Falls,  etc.,  Elevator  Co.  v.  Chicago  Great  W.  R. 
Co.,  10  I.  C.  C.  650.  Reasonable  differentials  between  Balti- 
more, Philadelphia  and  New  York.  Re  Differential  Freight 
Rates  to  and  from  North  Atlantic  Ports,  11  I.  C.  C.  13.  Car- 
rier not  liable  for  discrimination  caused  by  state  commission.  Re 
Freight  Rates  Between  Memphis  and  Points  in  Arkansas.  111. 
C.  C.  180.  Differentials  between  corn  and  corn  products  fixed. 
Re  Rates  on  Corn  and  Corn  Products.  11  I.  C.  C.  212,  220,  227. 


494  Acts  Regulating  Commerce,  [§  346. 

Unjust  discrimination.  City  Gas  Co.  of  Norfolk  v.  B.  &  O.  R. 
Co.,  11  I.  C.  C.  371.  Rates  not  unduly  prejudicial.  Griffin 
Grocery  Co.  v.  So.  Ry.  Co.,  11  I.  C.  C.  522.  Flour  in  barrels 
and  in  sacks  should  have  a  uniformly  just  rate  relation.  Can- 
non V.  M.  &  O.  R.  Co.,  11  I.  C.  C.  537.  Junk  should  not  be 
rated  as  high  as  machinery.  National  Machinery  &  Wrecking 
Co.  V.  Pittsburg,  etc.,  R.  Co.,  11  I.  C.  C.  581.  Different  rates 
in  reverse  directions  not  necessarily  unreasonable.  Weil  v. 
Penn.  R.  Co.,  11  I.  C.  C.  627.  Duncan  v.  A.  T.  &  S.  F.  R. 
Co.,  6  I.  C.  C.  85,  4  I.  C.  R.  385 ;  MacLoon  v.  Boston  &  M.  R. 
Co.,  9  I.  C.  C.  642 ;  Hewins  v.  New  York,  N.  H.  &  H.  R.  Co., 
10  I.  C.  C.  221;  Phillips  7'.  Grand  Trunk  W.  R.  Co.,  11  I. 
C.  C.  659;  see  also  decision  by  Judge  Speer,  Int.  Com.  Com.  v. 
L.  &  N.  R.  Co.,  118  Fed.  613,  623.  Adjustment  of  rates  held 
unreasonable.  Davenport  v.  So.  Ry.  Co.,  11  I.  C.  C.  650. 
Difference  in  cost  of  manufacture  no  ground  in  itself  for  ad- 
justment of  rates.  Phillips  v.  Grand  Trunk  W.  Ry.  Co.,  11  I. 
C.  C.  659.  Not  undue  discrimination.  Village  of  Goodhue  v. 
Chicago  Great  W.  Ry.  Co.,  11  I.  C.  C.  683,  687.  A  different 
charge  by  a  carrier  for  transportating  freight  originating  on 
its  own  line  than  for  that  received  from  connecting  lines 
illegal.  Blackwell  Milling  &  Elevator  Co.  v.  M.  K.  &  T.  R.  Co., 
12  I.  C.  C.  23;  Ponca  City  Milling  Co.  v.  M.  K.  &  T.  R.  Co., 
id.  26.  Differential  between  Wichita  and  Kansas  City  from  Gal- 
veston too  great.  Johnston-Larimer  Dry  Goods  Co.  v.  A.  T.  & 
S.  F.  R.  Co.,  12  I.  C.  C.  47,  188;  see  similar  cases  id,  51,  58. 
Carriers  can  not  arbitrarily  fix  market  competition.  Texas  Ce- 
ment Plaster  Co.  v.  St.  L.  &  S.  F.  R.  Co.,  12  I.  C.  C.  68.  May 
make  cheaper  rates  to  Pacific  Coast  from  New  England  mills 
than  from  southeastern  mills.  Enterprise  Mfg.  Co.  v.  Ga.  R.  Co., 
12  I.  C.  C.  130,  451  ;  China  &  Japan  Trading  Co.  v.  Georgia  R. 
Co.,  12  I.  C.  C.  236.  Rate  discrimination.  Tomlin-Harris  Machine 
Co.  V.  L.  &  N.  R.  Co.,  12  I.  C.  C.  133;  Southern  Grocery  Co.  v. 
Ga.  N..R.  Co.,  12  I.  C.  C.  229.  Different  minimum  car  load 
on  same  commodity  illegal.  Waxelbaum  v.  Atlantic  C.  L.  R.  Co., 
12  I.  C.  C.  178.  Adjustment  illegal.  Nobles  Bros.  Grocery  Co. 
V.  F.  W.  &  D.  C.  R.  Co.,  12  I.  C.  C.  242.  Relation  in 'rates 
between  grain  and  its  products  long  established  should  not  be 
changed  without  good  reason.  Howard  Mills  Co.  v.  Mo.  Pac. 
R.  Co.,  12  I.  C.  C.  258;  see  also  Traffic  Bureau  v.  Mo.  Pac.  R. 
Co.,  13  I.  C.  C.  11.    Augusta,  Ga.,  Suburbs  entitled  to  same  rate 


§  346.]  Annotated.  495 

as  Augusta.  Quimby  v.  Clyde  S.  S.  Co.,  12  I.  C.  C.  392.  Dis- 
crimination. Banner  Milling  Co.  v.  New  York  Cent.,  etc.,  R. 
Co.,  13  I.  C.  C.  31.  Must  be  no  unjust  discrimination  in  dis- 
tributing cars.  Powhattan  Coal  &  Coke  Co.  v.  Norfolk  &  W.  R. 
Co.,  13  I.  C.  C.  69;  Royal  C.  &  C.  Co.  v.  So.  Ry.  Co.,  13  I.  C. 
C.  440;  Traer  v.  Chicago  &  A.  R.  Co.,  13  I.  C.  C.  451.  Right 
to  use  private  cars  not  prohibited  but  such  use  must  not  cause 
discrimination.  Ruttle  v.  Pere  Marquette  R.  Co.,  13  I.  C.  C.  179. 
Must  not  discriminate  in  through  routes  and  joint  rates.  Mer- 
chants Freight  Bureau  of  Little  Rock  v.  Midland  Valley,  etc.,  R. 
Co.,  13  I.  C.  C.  243.  Freight  tarififs  should  not  be  obscure.  Hy- 
draulic Press  Brick  Co.  v.  St.  L.  &  S.  F.  R.  Co.,  13  I.  C.  C.  342. 
Little  reference  can  be  given  to  the  value  of  property  in  fixing 
express  rates.  Kindel  z'.  Adams  Exp.  Co.,  13  L  C.  C.  475. 
Party  rates  must  be  open  to  all.  Koch  Secret  Service  v.  L.  & 
N.  R.  Co.,  13  L  C.  C.  523.  Reasonable  and  just  rates  may  be 
fixed  regardless  of  contracts  betw^een  express  and  railroad  com- 
panies. Reynolds  v.  So.  Ex.  Co.,  13  I.  C.  C.  536.  Rate  not  vio- 
lation of  section.  Randolph  Lumber  Co.  v.  Seaboard  A.  L.  R. 
Co.,  13  L  C.  C.  601.  Rates  may  be  dififerent  on  hard  and  soft 
wood  timber.  Burgess  v.  Transcontinental  Freight  Bureau,  13 
I.  C.  C.  668.  Terminal  companies  may  not  discriminate  in  fa- 
cilities granted  shippers.  Eichenberg  v.  So.  Pac.  Co.,  14  I.  C. 
C.  250.  Order  not  enjoined.  Southern  Pac.  Ter.  Co.  v.  Int.  Com. 
Com.,  166  Fed.  134.  Not  unjust  discrimination  to  refuse  to 
transport  liquors  C.  O.  D.  Royal  Brewing  Co.  v.  Adams  Exp. 
Co.,  15  L  C.  C.  R.  255,  258.  Shippers  have  a  right  to  reach  a 
common  market  without  discrimination.  Black  Mountain  Coal 
Land  Co.  v.  So.  Ry.  Co.,  15  L  C.  C.  286.  Competition  by  water 
may  justify  different  car  load  minimum.  City  of  Spokane  v. 
N.  Pac.  R.  Co.,  15  L  C.  C.  376.  Furnishing  two  cars  at  the  min- 
imum of  one  when  one  large  one  can  not  be  furnished,  known 
as  the  "two  for  one"  rule,  must  be  without  discrimination.  In- 
dianapolis Freight  Bureau  v.  Cleveland,  C.  C.  &  St.  L.  Ry.  Co., 
15  I.  C.  C.  504,  516.  Carrier  can  not  discriminate  in  favor  of 
products  on  its  own  line.  Standard  Lime  &  Stone  Co.  v.  Cum- 
berland Val.  R.  Co.,  15  I.  C.  C.  620,  624.  At  common  law  dis- 
crimination by  common  carriers  was  illegal.  Hays  v.  Penn.  Co., 
12  Fed.  309;  Kinsley  v.  Buffalo,  N.  Y.  &  P.  R.  Co.,  37  Fed.  181 ; 
Western  Union  Tel.  Co.  v.  Call  Pub.  Co.,  181  U.  S.  92,  45  L.  Ed. 
765,  21  Sup.  Ct.  561.     Section  two  relates  to  unjust  discrimina- 


496  Acts  Regulating  Commerce,  [§  346. 

tion  in  rates,  section  three  is  broader  and  proliibits  discrimina- 
tion "in  any  respect  whatever."  United  States  v.  Delaware,  L.  & 
W.  R.  Co.,  40  Fed.  101,  103.  Our  section  taken  from  EngHsh 
Traffic  Acts  and  EngHsh  cases  cited  showing  the  construction 
placed  upon  the  statutes  from  which  this  section  is  taken.  Int. 
Com.  Com.  V.  B.  &  O.  R.  Co.,  43  Fed.  37,  3  I.  C.  R.  192.  Af- 
firmed. 145  U.  S.  263,  36  L.  Ed.  699,  12  Sup.  Ct.  844.  Federal 
courts  have  jurisdiction  under  this  section  regardless  of  diver- 
sity of  citizenship.  Little  Rock  &  M.  R.  Co.  v.  East  Tenn.,  Va. 
&  Ga.  R.  Co..  47  Fed.  771.  Appeal  dismissed.  159  U.  S.  698, 
40  L.  Ed.  311,  16  Sup.  Ct.  189.  Does  not  require  one  road  to 
receive  cars  of  another  when  it  has  cars  of  its  own  in  which  the 
freight  may  be  transported.  Oregon  Short  Line  and  U.  N.  Ry. 
Co.  V.  N.  Pac.  R.  Co.,  51  Fed.  465.  Affirmed.  61  Fed.  158,  9 
C.  C.  A.  409.  Only  unjust  discrimination  prohibited.  Int.  Com. 
Com.  V.  Tex.  &  Pac.  Ry.  Co.,  52  Fed.  187.  citing  Nicholson  v. 
Great  W.  Ry.  Co.,  5  C.  B.  (N.  S.)  366.  Affirmed.  57  Fed.  948, 
6  C.  C.  A.  653,  20  U.  S.  App.  1,  4  I.  C.  R.  408.  Reversed  on 
other  grounds,  162  U.  S.  197,  40  L.  Ed.  940,  16  Sup.  Ct.  666. 
Clause  indefinite  and  uncertain  and  as  whether  or  not  undue 
preference  exists  must  be  left  to  a  jury,  a  violation  not  punish- 
able as  a  crime.  Tozer  v.  United  States,  52  Fed.  917;  see  opin- 
ion and  charge  of  lower  court  United  States  v.  Tozer,  37  Fed. 
635,  2  L.  R.  A.  444,  39  Fed.  369,  39  Fed.  904.  Not  illegal  to 
guarantee  that  an  opera  troupe  shall  arrive  at  its  destination  at  a 
given  time.  Foster  v.  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.,  56  Fed. 
434.  Carrier  not  required  to  permit  a  competitor  to  land  at  its 
wharf.  Ilwaco  Ry.  &  Nav.  Co.  v.  Ore.  Short  L.  and  U.  N.  Ry. 
Co.,  57  Fed.  673,  6  C.  C.  A.  495 ;  Weems  Steamboat  Company  v. 
People's  Steamboat  Co.,  214  U.  S.  345,  53  L.  Ed.  1024,  29  Sup. 
Ct.  661.  Carrier  may  permit  use  of  its  track  to  one  to  the  ex- 
clusion of  other  carriers.  Little  Rock  &  ^I.  R.  Co.  v.  St.  L.,  I. 
M.  &  S.  Ry.  Co.,  59  Fed.  400.  Affirmed,  63  Fed.  775,  11  C.  C. 
A.  417,  26  L.  R.  A.  192.  Can  not  make  a  different  charge  because 
of  origin  of  commodity.  Bigbee,  etc..  Packet  Co.  v.  Mobile  & 
O.  R.  Co.,  60  Fed.  545.  Joint  through  tariff  not  basis  for  local 
tariff.  Parsons  v.  Chicago  &  N.  W.  Ry.  Co..  63  Ffd.  903,  11  C. 
C.  A.  489.  Affirmed.  167  U.  S.  447.  42  L.  Ed.  231,  17  Sup.  Ct. 
'  887,  holding  that  a  shipper  can  not  recover  a  penalty  for  dis- 
crimination if  his  rate  is  reasonable.  Giving  free  pass  violates 
section.     Re  Charge  to  Grand  Jury.     66  Fed.   146.     If  pass  is 


§  346.]  Annotated.  497 

used.  Re  Huntington,  68  Fed.  881.  No  defense  to  charge  of 
discrimination  that  carrier  may  at  will  withdraw  the  favor  to 
plaintiff's  competitor.  Butchers',  etc.,  Stock  Yards  Co.  v.  L.  & 
N.  R.  Co.,  67  Fed.  35,  14  C.  C.  A.  290.  Attention  called  to  the 
fact  that  the  words  "under  substantially  similar  circumstances 
and  conditions"  are  not  in  this  section.  Int.  Com.  Com.  v.  Ala- 
bama M.  Ry.  Co.,  69  Fed.  227,  231.  Affirmed.  74  Fed.  715,  21 
C.  C.  A.  51,  41  U.  S.  App.  453,  1  I.  C.  R.  685,  holding  that  what 
is  undue  and  unreasonable  preference  a  question  of  fact  and  not 
of  law.  Affirmed.  168  U.  S.  144,  42  L.  Ed.  414,  18  Sup.  Ct.  45, 
holding  that  a  determination  by  the  Interstate  Commerce  Com- 
mission that  a  rate  violates  section  three  is  subject  to  review  by 
the  courts.  Second  and  third  sections  compared.  Int.  Com. 
Com.  z;.  L.  &  N.  R.  Co.,  7Z  Fed.  409.  The  collection  as  well  as 
the  delivery  of  goods  is  subject  to  the  rule  of  equal  treatment. 
Detroit,  G.  H.  &  M.  Ry.  Co.  v.  Int.  Com.  Com.,  74  Fed.  803,  812, 
21  C.  C.  A.  103,  43  U.  S.  App.  308,  reversing  57  Fed.  1005,  4  I. 
C  R.  722.  Affirmed.  167  U.  S.  633,  42  L.  Ed.  306,  17  Sup.  Ct. 
986.  The  ultimate  power  of  determining  whether  or  not  there 
is  discrimination  is  in  the  courts.  Int.  Com.  Com.  v.  East  Tenn., 
Va.  &  Ga.  Ry.  Co.,  85  Fed.  107,  117.  Affirmed.  99  Fed.  52,  39 
C.  C.  A.  413!  Reversed.  East  Tenn.,  Va.  &  Ga.  Ry.  Co.  v.  Int. 
Com.  Com.,  181  U.  S.  1,  45  L.  Ed.  719,  21  Sup.  Ct.  516.  There 
might  be  a  violation  of  section  three  without  a  violation  of  sec- 
tion four,  but  the  facts  here  do  not  make  such  a  case.  Int. 
Com.  Com.  v.  Western  &  A.  R.  Co.,  88  Fed.  186,  194.  Affirmed. 
93  Fed.  83,  35  C.  C.  A.  217.  Modified  so  that  the  Commission 
could  make  an  original  investigation  in  accord  with  the  rules  of 
law  announced.  Int.  Com.  Com.  v.  Clyde  S.  S.  Co.  and  Same  v. 
Western  &  A.  R.  Co.,  181  U.  S.  29,  45  L.  Ed.  729,  21  Sup.  Ct. 
512.  Length  of  time  will  not  made  discrimination  legal,  and  the 
courts  are  not  concluded  by  the  determination  of  carriers.  Dis- 
crimination produced  by  an  effective  restraint  of  trade  will  not 
make  such  a  different  state  of  circumstances  as  to  justify  dis- 
criminative rates.  East  Tenn.,  Va.  &  Ga.  Ry.  Co.  v.  Int.  Com. 
Com.,  99  Fed.  52,  39  C.  C.  A.  413.  Reversed  because  the  com- 
missioners and  the  courts  did  not  consider  all  the  legal  principles 
that  should  have  been  applied.  Cause  dismissed  without  prej- 
udice to  the  rights  of  the  Commission  to  make  further  investiga- 
tion according  to  the  law  as  announced.  East  Tenn.,  Va.  &  Ga. 
Ry.  Co.  7'.  Int.  Com.  Com..  181  U.  S.  1,  45  L.  Ed.  719,  21  Sup. 


498  Acts  Regulating  Commerce,  [§  346. 

Ct.  516.  Section  applies  to  switch  connections  and  equity  may 
enjoin  discrimination.  Interstate  Stock  Yards  Co.  v.  Indian- 
apolis U.  Ry.  Co.,  99  Fed.  472.  Must  be  actual  not  threatened 
discrimination.  Lehigh  V.  R.  Co.  v.  Rainey,  112  Fed.  487.  The 
same  evidence  that  will  relieve  from  section  four  will  disprove 
undue  preference  under  section  three.  Int.  Com.  Com.  v.  Nash- 
ville, C.  &  St.  L.  Ry.  Co.,  120  Fed.  934.  Carriers  may  meet  com- 
petition without  violating  section.  Int.  Com.  Com.  v.  Cincinnati, 
P.  &  V.  R.  Co.,  124  Fed.  624.  Whether  a  preference  is  "undue" 
or  "unreasonable"  must  be  determined  by  the  circumstances  of 
each  case.  The  act  to  regulate  commerce  was  designed  to  pro- 
mote and  not  to  obstruct  competition.  An  able  and  comprehen- 
sive discussion  of  the  subject  of  rates.  Int.  Com.  Com.  z'.  Chi- 
cago G.  W.  Ry.  Co.,  141  Fed.  1003.  Affirmed,  same  style  case, 
209  U.  S.  108,' 52  L.  Ed.  705,  28  Sup.  Ct.  493,  holding  that  com- 
petition negatives  any  unlawful  intent  on  the  part  of  the  car- 
rier. This' section  requires  that  carriers  shall  not  discriminate 
in  furnishing  cars  to  shippers.  United  States  v.  Norfolk  &  W. 
Ry.  Co.,  143  Fed.  266,  74  C.  C.  A.  386,  404,  reversing  138  Fed. 
849.  A  carrier  may  legally  make  a  contract  to  build  up  and  de- 
velop a  particular  traffic.  Delaware,  L.  &  W.  R.  Co.  v.  Kutter, 
147  Fed.  51,  77  C.  C.  A.  315.  Petition  for  certiorari  denied.  203 
U.  S.  588,  51  L.  Ed.  330.  A  charge  in  excess  of  the  cost  of  load- 
ing hay  from  warehouses  illegal.  St.  Louis  Hay  &  Grain  Co.  v. 
Southern  Ry.  Co.,  149  Fed.  609.  Affirmed.  So.  Ry.  Co.  v.  St. 
Louis  Hay  &  Grain  Co.,  153  Fed.  728,  holding  that  charges  on 
through  business  not  a  basis  for  charges  on  local  business.  Re- 
versed. So.  Ry.  Co.  V.  St.  Louis  Hay  and  Grain  Co.,  214  U.  S. 
297,  53  L.  Ed.  100,  4  Sup.  Ct.  678,  holding  that  the  carrier  was 
entitled  to  a  reasonable  profit  in  excess  of  the  actual  cost.  Sec- 
tion sufficiently  broad  to  cover  demurrage  charges.  Michie  v. 
New  York,  N.  H.  &  H.  R.  Co.,  151  Fed.  694.  Rule  as  to  distribu- 
tion of  cars  to  coal  companies.  United  States  ?a  B.  &  O.  R.  Co., 
154  Fed.  108.  Reversed.  165  Fed.  113;  Logan  Coal  Co.  v.  Penn. 
R.  Co.,  154  Fed.  497;  Majestic  Coal  &  Coke  Co.  v.  111.  Cent.  R. 
Co.,  162  Fed.  810.  A  carrier  may  grant  to  one  the  right  to  erect 
an  elevator  on  its  right-of-way  and  refuse  such  right  to  another. 
United  States  v.  Oregon  R.  &  Nav.  Co.,  159  Fed.  975.  Express 
companies  can  not  transport  free  the  property  of  its  officers  or 
employees.  United  States  v.  Wells  Fargo  Ex.  Co.,  161  Fed.  606. 
Affirmed.    Wells  Fargo  Ex.  Co.  v.  United  States,  212  U.  S.  522, 


§  346.]  Annotated.  499 

53  L.  Ed.  635,  29  Sup.  Ct.  315.  Congress  in  adopting  this  sec- 
tion is  presumed  to  have  adopted  the  construction  placed  on  a 
similar  English  statute  by  the  courts  of  England.  Int.  Com. 
Com.  V.  B.  &  O.  R.  Co.,  145  U.  S.  263,  36  L.  Ed.  699,  12  Sup. 
Ct.  844.  Statute  does  not  define  what  preference  is  due  or  un- 
due, reasonable  or  unreasonable  and  such  questions  are  questions 
not  of  law  but  of  fact.  Tex.  &  Pac.  R.  Co.  v.  Int.  Com.  Com., 
162  U.  S.  19?,  219,  220,  40  L.  Ed.  940,  947,  948,  16  Sup.  Ct.  666. 

Notes  of  Decisions  Rendered  Since  1909. 

Water  competition  to  the  extent  of  its  forces  may  be  re- 
garded. Planters  Gin  &  Compress  Co.  v.  Y.  &  M.  V.  R.  R.  Co., 
16  I.  C.  C.  131,  133  citing  cases.  May  be  violated  in  allowances 
to  shippers  under  Sec.  15,  Sec.  404  post.  Merchants  Cotton 
Press  &  Storage  Co.  v.  I.  C.  R.  R.  Co.,  17  I.  C.  C.  98,  105.  No 
shipper  can  enjoy  advantages  not  conceded  to  all  in  like  situa- 
tion. Brook-Rauch  Mill  &  Elevator  Co.  v.  M.  P.  Ry.  Co.,  17  I. 
C.  C.  158,  164.  Proportioned  rates  limited  to  one  line  violates. 
Bascom  Co.  v.  A.  T.  &  S.  F.  Ry.  Co.,  17  I.  C.  C.  354,  357.  May 
not  discriminate  because  of  a  contract  with  a  particular  place. 
Loch-Lynn  Construction  Co.  v.  B.  &  O.  R.  Co.,  17  I.  C.  C.  396. 
Competition  favored  but  undue  discrimination  prohibited.  R.  R. 
Com.  of  Tenn.  v.  A.  A.  R.  Co.,  17  I.  C.  C.  418,  421.  In  dis- 
tribution of  cars.  Hillsdale  Coal  &  Coke  Co.  v.  P.  R.  R.  Co.,  19 
I.  C.  C.  356  and  cases  cited.  No  different  rate  because  of  differ- 
ences in  marking  packages.  Algert  Co.  v.  D.  &  R.  G.  R.  Co.,  20 
T.  C.  C.  93.  No  different  rate  because  of  dift'erent  use.  Re  Re- 
stricted Rates,  20  I.  C.  C.  426.  Between  subscribers  for  tele- 
phones. Shoemaker  v.  C.  &  P.  Tel.  Co.,  20  I.  C.  C.  614.  Mean- 
ing of  undue  and  unreasonable  discussed.  R.  R.  Com.  of  Nev- 
ada, 21  I.  C.  C.  329,  336.  Switching  allowance  limited  to  cases 
where  the  rate  exceeds  50  cents  a  ton  violates.  Buffalo  Union 
Furnace  Co.  v.  L.  S.  &  M.  S.  Ry.  Co.,  21  I.  C.  C.  620,  629.  Sec- 
tion applies  when  the  discriminating  rate  is  intrastate.  Railroad 
Com.  of  La.  v.  St.  L.  S.  W.  Ry.  Co.,  Shreveport  case,  23  I.  C.  C. 
31,  order  sustained.  Texas  &  Pac.  Ry.  Co.  v.  U.  S.,  205  Fed. 
380,  Opin.  Com.  Ct.  No.  68,  p.  655.  Houston  E.  &  W.  T.  Ry. 
Co.  V.  United  States,  205  Fed.  391,  Opin.  Com.  Ct.  No.  67,  p. 
653;  Com.  Ct.  affirmed.  Houston  E.  &  W.  Ry.  Co.  v.  United 
States,  234  U.  S.  342,  58  L.  Ed.  1341.  34  Sup.  Ct.  833.  Carrier 
may  grant   exchisive   right   to   one   comj^any   to   solicit   baggage 


500  Acts  Regulating  Commerce,  [§  346. 

transfers.  Cosby  v.  Richmond  Trans.  Co.,  23  I.  C.  C.  72.  Commis- 
sion can  not  compel  an  advance  in  rates  to  remove  discrimination. 
Transportation  Fresh  Meats,  23  I.  C.  C.  652,  655.  Basing-point 
System.  Boston,  Ga.  v.  A.  C.  L.  R.  Co.,  24  I.  C.  C.  50.  Board  of 
Trade  of  Carollton  v.  C.  of  G.  R.  Co.,  28  I.  C.  C.  154.  Having  un- 
dertaken a  switching  service  this  section  requires  equality.  Flour 
City  S.  S.  Co.  V.  L.  V.  R.  R.  Co.,  24  I.  C.  C.  179,  189.  Elevator 
allowances,  Gund  &  Co.  v.  C.  B.  &  Q.  R.  Co.,  25  I.  C.  C.  326. 
Through  routes  must  be  maintained  without  discrimination. 
Wichita  Falls  System  Joint  Coal  Rates,  26  I.  C.  C.  215,  223. 

Distinguished  from  Sec.  2,  Sec.  345  supra.  Board  of  Trade  of 
Chicago  V.  C.  &  A.  R.  R.  Co.,  27  I.  C.  C.  530,  534.  Efifect  of 
competitive  conditions  discussed.  Richmond  Chamber  of  Com- 
merce V.  S.  A.  L.  Ry.  Co.,  30  I.  C.  C.  552.  Limits  Sec.  15,  post 
Sec.  400,  Pacific  Nav.  Co.  v.  So.  Pac.  Co.,  31  I.  C.  C.  472.  Ap- 
plies to  lease  of  premises  to  shippers.  Cleveland,  C.  C.  &  St.  L. 
Ry.  Co.  V.  Hirsch,  204  Fed.  849,  123  C.  C.  A.  145.  May  make 
an  allowance  for  transfer  without  violating  statute.  Am.  Sugar 
Refining  Co.  v.  Delaware,  L.  &  W.  R.  Co.,  207  Fed.  7ZZ,  125  C. 
C.  A.  251,  reversing  same  styled  case,  200  Fed.  652.  Discrim- 
ination in  the  distribution  of  cars  for  determination  by  Commis- 
sion. Morrisdale  Coal  &  Coke  Co.  v.  P.  R.  R.  Co.,  230  U.  S. 
304,  57  L.  Ed.  1494,  33  Sup.  Ct.  938,  affirming  same  styled  case 
183  Fed.  929,  106  C.  C.  A.  269.  Discrimination  in  use  of  Wharves 
for  export  business.  So.  Pac.  Terminal  Co.  v.  Int.  Com.  Com., 
219  U.  S.  498.  55  L.  Ed.  310,  31  Sup.  Ct.  279.  Elevator  allow- 
ance conditioned  on  reshipping  in  ten  days  legal.  Int.  Com.  Com. 
V.  Dififenbaugh,  222  U.  S.  42,  56  L.  Ed.  83,  32  Sup.  Ct.  22, 
modifying,  Peavey  v.  N.  Pac.  R.  Co.,  176  Fed.  409.  For  the 
Commission's  decisions  involved  see,  176  Fed.  410.  The  distri- 
bution of  cars  within  provision.  Int.  Com.  Com.  v.  111.  C.  R.  R. 
Co.,  215  U.  S.  452,  54  L.  Ed.  280,  30  Sup.  Ct.  155,  reversing, 
Chicago  &  A.  R.  Co.  v.  Int.  Com.  Com.,  173  Fed.  930  and  sus- 
taining the  Commission  in  Traer  v.  Chicago  &  A.  R.  Co.,  13  I. 
C.  C.  451.  See  also  Railroad  Com.  of  Ohio  v.  H.  V.  Ry.  Co.,  12 
I.  C.  C.  398.  Special  expedited  service  not  open  to  all  illegal. 
C.  &  A.  R.  Co.  V.  Kirby,  225  U.  S.  155,  56  L.  Ed.  1033.  32  Sup. 
Ct.  648,  reversing,  Kirby  v.  C.  &  A.  R.  Co.,  241  111.  418,  90  N.  E. 
252.  Conditions  impossible  of  performance  because  of  rule  of 
carrier  can  not  be  imposed  on  the  payment  of  elevator  allow- 
ances.  Union  P.  R.  Co.  v.  Updike  Grain  Co..  222  U.  S.  215,  56 


§  347.]  Annotated.  501 

L.  Ed.  171,  32  Sup.  Ct.  39,  affirming  same  styled  case,  178  Fed. 
223,  101  C.  C.  A.  583.  Ownership  of  goods  can  not  be  consid- 
ered. Int.  Com.  Com.  v.  D.  L.  &  W.  R.  Co.,  220  U.  S.  235,  55 
L.  Ed.  448,  31  Sup.  Ct.  392,  reversing  same  styled  case  166  Fed. 
499.  State  made  rates,  see  Shreveport  case  supra.  Construed 
with  Fourth  Section  U.  S.  v.  A.  T.  &  S.  F.  Ry.  Co.,  Inter-moun- 
tain case  234  U.  S.  476,  58  L.  Ed.  1408,  34  Sup.  Ct.  986,  revers- 
ing, 191  Fed.  856,  Op.  Com.  Ct.  Nos.  50,  51,  p.  229.  "Tap  lines" 
not  illegal.  Tap  line  cases,  234  U.  S.  1,  58  L.  Ed.  1185,  34  Sup.  Ct. 
741,  31  I.  C.  C.  490,  34  I.  C.  C.  116,  35  I.  C.  C.  458,  Industrial 
Railways  case  29  I.  C.  C.  212.  Second  Industrial  Railways  case 
34  I.  C.  C.  596.  Cars  must  be  forwarded  without  discrimination. 
Vulcan  Coal  &  Mining  Co.  v.  I.  C.  R.  Co.,  33  I.  C.  C.  52. 
A  railroad  not  directly  serving  a  locality  nor  a  party  to  joint 
or  through  rates  thereto  can  not  be  guilty  of  unjust  discrimina- 
tion against  such  locality.  St.  Louis  I.  M.  &  S.  Ry.  Co.  v.  United 
States,  217  Fed.  80,  enjoining  the  order  of  the  Commission  in 
Metropolis  Commercial  Club  v.  111.  C.  R.  Co.,  30  I.  C.  C.  40.  See 
also,  So.  Ry.  Co.  v.  United  States,  205  Fed.  465.  "A  just  equal- 
ity of  opportunity  for  shipper  and  locality  is  required  by  law." 
Kaufman  Commercial  Club  v.  T.  &  N.  O.  R.  Co.,  31  I.  C.  C.  167, 
171.  Different  proportional  rates  dependent  on  point  of  origin 
are  not  necessarily  unlawful.  Export  Rates  on  Grain  and  Grain 
Products,  31  I.  C.  C.  616,  and  cases  cited.  Compare,  Auguta  S. 
R.  Co.  V.  Wrightsville  &  T.  R.  Co.,  74  Fed.  522  and  New  Or- 
leans Board  of  Trade  v.  111.  C.  R.  Co.,  23  I.  C.  C.  465. 
Blanket  rates  not  necessarily  illegal,  but  are  under  some  circum- 
stances and  upon  a  sufficiently  comprehensive  investigation  the 
Yellow  Pine  Blanket  might  be  changed.  Wisconsin  and  Arkan- 
sas Lumber  Co.  v.  St.  L.  I.  M.  &  S.  Ry.  Co.,  33  I.  C.  C.  33. 

§  347.  Carriers  Shall  Accord  Reasonable  and  Equal  Fa- 
cilities for  Interchange  of  Traffic. — Every  common  carrier 
subject  to  the  provisions  of  this  act  shall,  according  to  their  re- 
spective powers,  afford  all  reasonable,  proper,  and  equal  facilities, 
for  the  interchange  of  traffic  between  their  respective  lines,  and 
for  the  receiving,  forwarding,  and  delivering  of  passengers  and 
property  to  and  from  their  several  lines  and  those  connecting 
therewith,  and  shall  not  discriminate  in  their  rates  and  charges 
between  such  connecting  lines ;  but  this  shall  not  be  construed  as 
requiring  any  such  common  carrier  to  give  the  use  of  its  tracks 
or  terminal  facilities  to  another  carrier  engaged  in  like  business. 


502  Acts  Regulating  Commerce,  [§  347. 

Paragraph  two  of  section  three  as  originally  enacted. 

A  private  stock  car  company  is  not  a  connecting  line  within 
meaning  of  section.  Burton  Stock  Car  Co.  v.  Chicago  &  Bur- 
lington R.  Co.,  1  I.  C.  C.  132,  1  I.  C.  R.  329.  Commission  may 
not  compel  agents  of  one  road  to  sell  tickets  over  another.  Chi- 
cago &  Alton  R.  Co.  V.  Penn.  R.  Co.,  1  I.  C.  C.  86,  1  I.  C.  R. 
357.  A  bridge  company  having  the  powers  of  a  common  carrier 
bound  by  section.  Kentucky,  etc.,  Bridge  Co.  v.  L.  &  N.  R.  Co., 
2  I.  C.  C.  162,  2  I.  C.  R.  102.  Order  not  enforced.  37  Fed.  567. 
Carriers  may  make  through  routes  and  joint  rates  with  some 
river  boats  and  refuse  to  do  so  with  others.  Capehart  v.  L.  &  N. 
R.  Co.,  4  I.  C.  C.  265,  3  I.  C.  R.  278.  A  carrier  can  not  refuse  to 
interchange  traffic  with  another  carrier  because  that  other  is  in- 
terested in  a  competing  line.  New  York  &  N.  Ry.  Co.  v.  New 
York  &  N.  E.  R.  Co.,  4  I.  C.  C.  702,  3  I.  C.  R.  542.  Suit  to 
enforce  order  not  dismissed.  50  Fed.  867.  Section  construed  and 
held  not  to  give  Commission  power  to  order  loaded  cars  delivered 
to  a  connecting  carrier.  R.  R.  Com.  of  Ky.  v.  L,  &  N.  R.  Co., 
10  I.  C.  C.  173,  187.  To  enforce  through  routes  and  joint  rates 
on  behalf  of  connecting  carriers  is  not  to  take  the  use  of  termi- 
nal facilities.  Cardiff  Coal  Co.  v.  Chicago,  M.  &  St.  P.  R.  Co., 
13  I.  C.  C.  460.  This  statute  a  shippers  provision  and  indicates 
the  "open  gateway  policy"  of  the  act.  Rahway  Valley  R.  Co.  v. 
Delaware,  L.  &  W.  R.  Co.,  14  I.  C.  C.  191,  194.  Sections,  quoted. 
Enterprise  Fuel  Co.  v.  Penn.  R.  Co.,  16  I.  C.  C.  218,  221.  Does 
not  require  the  forming  of  new  connections  or  establishment  of 
new  stations.  Kentucky  &  I.  Bridge  Co.  v.  L.  &  N.  R.  Co.,  Z7 
Fed.  567,  621,  630.  Courts  can  not  compel  a  through  route  and 
joint  rate.  Little  Rock,  etc.,  R.  Co.  v.  St.  Louis,  etc.,  R.  Co.,  41 
Fed.  559.  A  carrier  may  prefer  its  own  line  to  that  of  a  rival. 
Little  Rock,  etc.,  R.  Co.  v.  East  Tenn.,  Va.  &  Ga.  R.  Co.,  47  Fed. 
771.  Must  not  only  receive  freight  from  a  connection  but  must 
also  grant  reasonable  and  equal  facilities  for  such  connection. 
.New  York  &  N.  Ry.  Co.  v.  New  York  &  N.  E.  R.  Co.,  50  Fed. 
867,  870.  A  railroad  is  not  required  to  take  a  connecting  car- 
rier's cars  when  it  can  transport  the  freight  in  its  own  cars.  Ore- 
gon Short  Line,  etc.,  Ry.  Co.  v.  N.  Pac.  R.  Co.,  51  Fed.  465. 
A.ffirmed.  61  Fed.  158,  9  C.  C.  A.  409.  May  enjoin  a  conspiracy 
to  refuse  to  make  connections.  Toledo,  etc.,  R.  Co.  v.  Penn. 
Co.,  54  Fed.  730.  746,  19  L.  R.  A.  387,  5  L  C.  R.  545,  22  U.  S. 
App.  561;  Ex  parte  Lennon,  64  Fed.  320,  22  U.  S.  App.  561. 


§  347.]  Annotated.  503 

166  U.  S.  548,  41  L.  Ed.  1110,  17  Sup.  Ct.  658.  Not  required  to 
permit  boats  of  a  competitor  to  land  at  wharf.  Ilwaco  Ry.  Co. 
&  Nav.  Co.  V.  Oregon  Short  Line,  etc.,  Ry.  Co.,  57  Fed.  673,  6 
C.  C.  A.  495,  reversing  51  Fed.  611.  Nor  to  permit  use  of  its 
own  tracks.  Little  Rock,  etc.,  R.  Co.  v.  St.  Louis,  L  M.  &  S. 
Ry.  Co.,  59  Fed.  400.  Affirmed.  63  Fed.  775,  11  C.  C.  A.  417, 
26  L.  R.  x\.  192.  Common  carrier  may  make  an  exclusive  contract 
with  a  drayage  company.  St.  Louis  Drayage  Co.  v.  L.  &  N.  R. 
Co.,  65  Fed.  39.  Or  with  another  carrier.  Prescott  &  A.  C.  R. 
Co.  V.  A.  T.  &  S.  F.  R.  Co.,  73  Fed.  438.  Can  not  charge  more  to 
transnut  freight  received  from  one  carrier  than  from  another. 
Augusta  S.  R.  Co.  v.  Wrightsville  &  T.  R.  Co.,  74  Fed.  522.  Car- 
rier may  demand  prepayment  of  freight  from  one  connecting 
carrier  and  not  from  another.  Gulf,  etc.,  R.  Co.  v.  Miami  S.  S. 
Co.,  86  Fed.  407,  30  C.  C.  A.  142 ;  Southern  Ind.  Exp.  Co.  v. 
United  States  Exp.  Co.,  88  Fed.  659.  It  is  the  duty  of  a  common 
carrier  to  furnish  reasonable  facilities  for  unloading  and  caring 
for  Hve  stock,  to  do  this  by  contracting  with  one  person  to  the 
exclusion  of  others  does  not  violate  this  section.  Central  Stock 
Yards  Co.  v.  L.  &  N.  R.  Co.,  118  Fed.  113,  117,  118,  55  C.  C.  A. 
63,  citing  A.  T.  &  S.  F.  R.  Co.  v.  Denver  &  N.  O.  R.  Co.,  110  U. 
S.  667,  28  L.  Ed.  291,  4  Sup.  Ct.  185;  Express  Cases,  Memphis 
&  L.  R.  R.  Co.  V.  So.  Express  Co.,  117  U.  S.  1,  29  L.  Ed.  791, 
6  Sup.  Ct.  542;  Puhman  Palace  Car  Co.  v.  Mo.  Pac.  R.  Co.,  115 
U.  S.  587,  29  L.  Ed.  499,  6  Sup.  Ct.  194 ;  N.  Pac.  R.  Co.  v.  Wash- 
ington ex  rel.  Dustin,  142  U.  S.  492,  35  L.  Ed.  1092,  12  Sup.  Ct. 
283.  The  case  and  the  doctrine  of  Central  Stock  Yards  Co.  v. 
L.  &  N.  R.  Co.,  118  Fed.  113,  55  C.  C.  A.  63,  affirmed.  Same 
case,  192  U.  S.  568,  48  L.  Ed.  565,  24  Sup.  Ct.  339.  Also  assum- 
ing, without  deciding,  that  injunction  the  proper  remedy  against 
discrimination,  at  p.  570.  Duties  of  carrier  to  furnish  facilities  to 
shipper  discussed  at  length  with  reference  to  furnishing  cars  to 
ship  coal.    United  States  v.  B.  &  O.  R.  Co.,  165  Fed.  113. 

Notes  of  Decisions  Rendered  Since  1909. 

Purpose  of  this  and  cognate  sections  is  that  every  shipping 
point  shall  be  connected  with  every  other  shipping  point.  Enter- 
prise Fuel  Co.  V.  P.  R.  R.  Co.,  16  L  C.  C.  219,  221.  "Give  the 
use  of  tracks  and  terminal  facilities"  discussed.  Merchants  & 
Manufacturers  Ass'n  v.  P.  R.  R.  Co.,  23  L  C.  C.  474,  476.  Con- 
strued with  Section  1,  Ante  Section  338  and  Sec.  15  post  400. 
Flour  City  S.  S.  Co.  v.  L.  V.  R.  R.  Co.,  24  L  C.  C.  179,  185 ; 


504  Acts  Regulating  Commerce,  [§  348. 

Railroad  Com.  of  Ark.  v.  St.  L.  I.  M.  &  S.  Ry.  Co.,  24  I.  C.  C. 
293,  295 ;  St.  L.  S.  &  P.  R.  R.  Co.  v.  P.  &  P.  U.  R.  Co.,  26  I.  C. 
C.  226,  234.  Effect  given  by  Commission  to  words  "Give  the 
use  of  tracks,"  etc.  Morris  Iron  Co.  v.  B.  &  O.  R.  R.  Co.,  26  I. 
C.  C.  240,  244;  B.  R.  &  P.  Ry.  Co.  v.  P.  R.  Co.,  29  I.  C.  C.  114, 
118;  Seattle  Chamber  of  Commerce  v.  G.  N.  Ry.  Co.,  30  I.  C.  C. 
683,  690;  Pacific  Nav.  Co.  v.  So.  Pac.  Co.,  31  I.  C.  C. 
472,  480.  When  a  carrier  switches  to  one  connecting  carrier  to 
require  like  switching  to  another  connecting  ca^^rier  does  not 
take  the  use  of  tracks  contrary  to  the  provisions  of  the  Section. 
Penn.  Co.  v.  U.  S.,  236  U.  S.  351,  59  L.  Ed.  —  35  Sup.  Ct.  370. 

§  348.  Rule  as  to  Long  and  Short  Hauls. — That  it  shall  be 
unlawful  for  any  common  carrier  subject  to  the  provisions  of 
this  act  to  charge  or  receive  any  greater  compensation  in  the  ag- 
gregate for  the  transportation  of  passengers,  or  of  like  kind  of 
property,  for  a  shorter  than  for  a  longer  distance  over  the  same 
line  or  route  in  the  same  direction,  the  shorter  being  included 
within  the  longer  distance,  or  to  charge  any  greater  compensa- 
tion as  a  through  route  than  the  aggregate  of  the  intermediate 
rates  subject  to  the  provisions  of  this  Act;  but  this  shall  not  be 
construed  as  authorizing  any  common  carrier  within  the  terms 
of  this  Act  to  charge  or  receive  as  great  compensation  for  a 
shorter  as  for  a  longer  distance. 

Section  4  of  the  act  as  amended  by  the  act  of  June  18,  1910. 
The  section  as  originally  passed  and  as  it  remained  until  the 
amendment  of  1910  read :  That  it  shall  be  unlawful  for  any 
common  carrier  subject  to  the  provisions  of  this  act  to  charge 
or  receive  any  greater  compensation  in  the  aggregate  for  the 
transportation  of  passengers  or  of  like  kind  of  property,  under 
substantially  similar  circumstances  and  conditions,  for  a  shorter 
than  for  a  longer  distance  over  the  same  line,  in  the  same  direc- 
tion, the  shorter  being  included  within  the  longer  distance;  but 
this  shall  not  be  construed  as  authorizing  any  common  carrier 
within  the  terms  of  this  act  to  charge  and  receive  as  great  com- 
pensation for  a  shorter  as  for  a  longer  distance :  Provided,  how- 
ever. That  upon  application  to  the  Commission  appointed  under 
the  provisions  of  this  act,  such  common  carrier  may,  in  special 
cases,  after  investigation  by  the  Commission,  be  authorized  to 
charge  less  for  longer  than  for  shorter  distances  for  the  trans- 
portation of  passengers  or  property ;  and  the  Commission  may 
from  time  to  time  prescribe  the  extent  to  which  such  designated 


§  348.]  Annotated.  505 

common  carrier  may  be  relieved  from  the  operation  of  this  sec- 
tion of  this  act. 

Notes  to  old  section. 

The  English  Railway  and  Traffic  Act  of  1888,  section  27, 
gave  the  commissioners  power  to  direct  that  no  greater  charge 
should  be  made  for  a  shorter  than  a  longer  haul  when  the  cir- 
cumstances demanded  such  direction.  Halsbury's  Laws  of  Eng- 
land, vol.  4,  p.  81. 

"Under  substantially  similar  circumstances"  defined  and  cir- 
cumstances that  relieve  from  the  section  discussed.  Re  Southern 
Ry.  &  Steamship  Co.  and  Petition  of  L.  &  N.  R.  Co.,  1  I.  C.  C. 
15,  17,  31,  76,  278,  1  I.  C.  R.  31.  Section  not  to  be  construed 
without  a  formal  petition.  Re  So.  Pac.  R.  Co.,  1  I.  C.  R.  16. 
Where  several  roads  join  in  a  tariff  for  the  longer,  and  a  less 
number  in  that  for  the  shorter  haul,  the  act  applies.  Boston  & 
A.  R.  Co.  V.  Boston  &  L.  R.  Co.,  1  I.  C.  C.  158,  1  I.  C.  R.  400, 
408,  500,  571.  Carrier  competition  may  be  met  even  though  the 
longer  through  haul  is  less  than  the  charge  over  the  shorter  haul. 
Allen  V.  Louisville,  New  Albany,  etc.,  R.  Co.,  1  L  C.  C.  199,  1 
L  C.  R.  621.  Must  be  actual  competition  of  controlling  force. 
Harwell  v.  Columbus  &  W.  R.  Co.,  1  L  C.  C.  236,  1  I.  C.  R.  631 ; 
San  Bernardino  Board  of  Trade  v.  A.  T.  &  S.  F.  R.  Co.,  4  I.  C. 
C.  104,  3  L  C.  R.  138.  Order  not  enforced.  Int.  Com.  Com.  v. 
A.  T.  &  S.  F.  R.  Co.,  50  Fed.  295.  May  violate  section  by  a 
different  classification  for  shorter  haul.  Martin  v.  So.  Pac.  Co., 
2  L  C.  C.  1,  2  L  C.  R.  1.  Burden  on  carrier  to  show  different  cir- 
cumstances. Spartanburg  Board  of  Trade  v.  Richmond  &  D. 
R.  Co.,  2  I.  C.  C.  304,  2  L  C.  R.  193.  Validity  of  the  charge 
determined  not  by  proportions  but  by  the  rate  as  an  entirety. 
Imperial  Coal  Co.  v.  Pittsburg  &  L.  E.  R.  Co.,  2  I.  C.  C.  618, 
2  I.  C.  R.  436.  Principles  given  showing  application  of  section 
to  tariffs  and  classification  in  southern  states.  Re  Atlanta  &  W. 
P.  R.  Co.,  3  I.  C.  C.  19,  46,  2  I.  C.  R.  461.  Free  cartage  at  the 
longer  and  not  at  the  shorter  may  constitute  a  violation  of  sec- 
tion. Stone  V.  Detroit,  etc.,  R.  Co.,  3  I.  C.  C.  613,  3  I.  C.  R. 
60.  Blanket  rate  legal  when  forced  by  competition.  Rice  v. 
A.  T.  &  S.  F.  R.  Co.,  4  I.  C.  C.  228,  3  I.  C.  R.  263.  Rate  legal 
because  of  competition.  King  v.  New  York,  N.  H.  &  H.  R.  Co., 
4  I.  C.  C.  251,  3  I.  C.  R.  272.  Basing  point  rate  plus  the  local  not 
approved.  Hamilton  &  Brown  v.  Chattanooga,  R.  &  C.  R.  Co., 
4  I.  C.  C.  686,  3  I.  C.  R.  482.    Local  carrier  participating  in  in- 


506  Acts  Regulating  Commet^ce,  [§  348. 

terstate  haul  cannot  escape  the  provisions  of  this  section.  James 
&  Mayer  Buggy  Co.  v.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  4  I.  C. 
C.  744,  3  I.  C.  R.  682.  Order  not  enforced  by  circuit  court.  Int. 
Com.  Com.  v.  C.  N.  O.  &  T.  P.  R.  Co.,  56  Fed.  925,  Circuit 
court  reversed,  162  U.  S.  184.  40  L.  Ed.  935,  16  Sup.  Ct.  700. 
No  reason  for  greater  charge  for  shorter  haul.  Perry  v.  Florida 
Cent.  &  P.  R.  Co.,  5  I.  C.  C.  97,  3  I.  C.  R.  740.  Section  intended 
to  maintain  not  destroy  advantages  of  location.  Raworth  v.  N. 
Pac.  R.  Co.,  5  I.  C.  C.  234,  3  I.  C.  R.  857.  Carriers  may  not 
determine  for  themselves  whether  or  not  the  circumstances  jus- 
tify a  greater  charge  for  a  short  haul,  except  on  their  own  line; 
where  there  is  a  joint  line,  must  before  making  the  charge  ob- 
tain order  of  Commission.  Trammel,  etc.,  R.  R.  Comr's.  of  Ga. 
V.  Clyde  Steamship  Co.,  5  I.  C.  C.  324,  4  I.  C.  R.  120.  Order 
not  enforced.  Int.  Com.  Com.  v.  W.  &  A.  A.  Co.,  88  Fed.  186, 
93  Fed.  83, -35  C.  C.  A.  226,  181  U.  S.  29,  45  L.  Ed.  729,  21  Sup. 
Ct.  512.  Rates  to  Pacific  Coast  Terminals  may  be  lower  tlian 
to  Spokane.    Merchants  Union  of  Spokane  Falls  v.  N.  P.  R.  Co., 

5  I.  C.  C.  478,  4  I.  C.  R.  183.    Order  not  enforced.    Farmers  L. 

6  T.  Co.  V.  N.  Pac.  R.  Co.,  83  Fed.  249.  Greater  charge  to 
Chattanooga-  than  through  Chattanooga  to  Nashville  illegal. 
Board  of  Trade  of  Chattanooga  v.  E.  T.,  \'.  &  G.  R.  Co.,  5  I.  C. 
C.  546,  4  I.  C.  R.  213.  Order  enforced.  85  Fed.  107,  99  Fed. 
52,  39  C.  C.  A.  413.  Reversed  in  Supreme  Court.  East  Tenn., 
Va.  &  Ga.  R.  Co.  v.  Int.  Com.  Com.,  181  U.  S.  1,  45  L.  Ed.  719, 
21  Sup.  Ct.  516.  When  ditterence  justifies,  it  must  be  reason- 
able. Competition  for  the  longer  haul  between  carriers  subject 
to  the  act  not  a  dissimilar  circumstance.  Gerke  Brewing  Co.  v. 
L.  &  N.  R.  Co.,  5  I.  C.  C.  596,  4  I.  C.  R.  267.  The  fact  that 
one  city  is  larger  than  another,  no  such  dissimilar  condition  as 
the  statute  requires.  Board  of  Trade  of  Troy  v.  Ala.  Midland 
R.  Co.,  6  I.  C.  C.  1.  Order  not  enforced.  Int.  Com.  Com.  v. 
Ala.  M.  R.  Co.,  69  Fed.  227,  74  Fed.  715,  21  C.  C.  A.  51,  168 
U.  S.  144,  42  L.  Ed.  414,  18  Sup.  Ct.  45.  Competition  of  mar- 
kets and  carriers  not  justify  carriers  in  first  instance  to  charge 
more  for  a  longer  than  a  shorter  haul,  but  the  carrier  must  ob- 
tain permission  of  the  Interstate  Com.  Com.  Behlmer  v.  Mem- 
phis &  C.  R.  Co.,  6  I.  C.  C.  257,  4  I.  C.  R.  520.  Order  not 
enforced.  71  Fed.  835.  Circuit  court  reversed.  83  Fed.  898. 
Circuit  court  of  appeals  reversed.  L.  &  N.  R.  Co.  v.  Behlmer, 
175  U.  S.  648,  44  L.  Ed.  309,  20  Sup.  Ct.  209.    Shortage  of  grain 


§  348.]  Annotated.  507 

crop  sufficient  to  justify  temporary  order  to  charge  less  for  a 
longer  than  for  a  shorter  haul.  Re  Application  of  Freemont, 
Elkhorn  &  Mo.  Valley  R.  Co.  et  al,  6  I.  C.  C.  293.  Each  case 
must  be  determined  on  its  special  facts.  Re  Petition  of  Cin- 
cinnati, H.  &  D.  R.  Co.,  for  Relief  Under  Section  4,  6  I.  C.  C. 
323.  World's  Fair  sufficient  reason  for  relief  under  proviso. 
Re  Petition  of  Cincinnati,  H.  &  D.  R.  Co.,  for  Relief  Under  Sec- 
tion 4.  6  I.  C.  C.  323.  Re  Application  of  Rome,  Watertown, 
etc.,  R.  Co.,  6  I.  C.  C.  328.  That  there  is  a  shorter  line  to  the 
same  point  does  not  justify  relief.  Hill  &  Bro.  v.  Nashville,  C. 
&  St.  L.  R.  Co.,  6  I.  C.  C.  343.  "Line"  means  a  physical  line, 
not  a  mere  business  arrangement.  Daniels  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  6  I.  C.  C.  458,  476.  To  Kansas  City  the  longer  dis- 
tance, a  less  rate  should  not  be  given  than  to  Wichita  the  shorten 
Johnston-Larimer  Dry  Goods  Co.  v.  A.  T.  &  S.  F.  R.  Co.,  6  L 
"C.  C.  568,  12  L  C.  C.  47,  188.  Violation  of  section  a  form  of 
unjust  discrimination.  McClelen  v.  So.  Ry.  Co.,  6  L  C.  C.  588. 
Order  not  enforced.  Int.  Com.  Com.  v.  So.  Ry.  Co.,  105  Fed. 
703.  Dissimilarity  of  the  carrier's  own  making  not  justify  devi- 
ation from  rule.    Jerome  Hill  Cotton  Co.  v.  AL  K.  &  T.  Ry._  Co., 

6  L  C.  C.  601.  Competition  at  the  longer  distance  point  by  car- 
riers subject  to  act  not  justify  less  rate  for  longer  haul  unless  by 
permission  of  Commission.  Board  of  Trade  of  Lynchburg  v. 
Old  Dominion  Steamship  Co.,  6  L  C.  C.  632.  Re  Alleged  Vio- 
lation of  Fourth  Section,  7  L  C.  C.  61.  Section  not  violated  by 
charging  the  same  rate  for  the  shorter  as  for  the  longer  distance. 
Milk  Producers'  Protective  Asso.  v.  Delaware,  L.  &  W.  R.  Co., 

7  L  C.  C.  93,  163.  Carriers  may  meet  but  not  extinguish  water 
competition.  Brewer  v.  L.  &  N.  R.  Co.,  7  L  C.  C.  224,  235; 
Railroad  Comrs.  of  Ky.  v.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  7 
L  C.  C.  380.  Order  not  enforced.  Brewer  v.  Central  of  Ga.  R. 
Co.,  84  Fed.  258.  Competition  of  markets  not  sufficient  to  re- 
lieve from  statute.  Fewell  v.  Richmond  &  D.  R.  Co.,  7  L  C.  C. 
354.  Higher  rates  from  New  Orleans  to  La  Grange  the  shorter 
distance  than  to'  Atlanta  illegal.  Callaway  v.  L.  &  N.  R.  Co.> 
7  L  C.  C.  431.  Order  enforced.  102  Fed.  709.  Circuit  court 
reversed.  Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  190  U.  S.  273,  47 
L.  Ed.  1047,  23  Sup.  Ct.  687.  Water  competition  justifies  a  less 
charge  for  the  longer  haul.  Savannah  Bureau  of  Freight  & 
Transportation  v.  Charleston  &  S.  R.  Co.,  7  I.  C.  C.  458;  Dallas 
Freight  Bureau  v.  Tex.  &  Pac.  Ry.  Co.,  8  1.  C.  C.  33.    Competi- 


508  Acts  Regulating  Commerce,  [§  348. 

tion  with  a  foreign  carrier  not  subject  to  the  law  justifies  an 
order  of  the  Commission  relieving  from  section.  Re  Applica- 
tion of  A.  T.  &  S.  F.  Ry.  Co.,  7  I.  C.  C.  593.  Re  Alleged  Dis- 
turbance of  Passenger  Rates  by  Canadian  Pacific  R.  Co.,  8  I.  C. 
C.  71.  Mere  fact  of  competition  not  of  itself  justify  relief  from 
section.  Phillips,  Bailey  &  Co.  v.  L.  &  N.  R.  Co.,  8  I.'c.  C.  93,  cit- 
ing decisions  of  Supreme  Court.  ]\Iay  make  lower  rate  on  goods 
exported  than  on  those  consumed  at  the  port.  Kemble  v.  Boston 
&  A.  R.  Co.,  8  I.  C.  C.  110.  Section  violated.  Re  Alleged  Vio- 
lation of  Act  by  St.  L.  &  S.  F.  Ry.  Co.,  8  I.  C.  C.  290.  Railroad 
Comr's  of  Kansas  v.  A.  T.  &  S.  F.  Ry.  Co.,  8  I.  C.  C.  304;  Chi- 
cago Fire  Proof,  etc.,  Co.  v.  Chicago  &  N.  W.  Ry.  Co.,  8  I.  C.  C. 
316.  Kindel  v.  A.  T.  &  S.  F.  Ry.  Co.,  8  I.  C.  C.  608,  9  I.  C.  C. 
606.  Rail  competition  may  be  considered,  the  effect  of  such 
competitiori  being  a  question  of  fact  in  each  case.  Tileston 
Milling  Co.  V.  N.  Pac.  Ry.  Co.,  8  I.  C.  C.  346,  citing  and  follow- 
ing Int.  Com.  Com.  v.  Alabama  M.  R.  Co.,  168  U.  S.  144,  42  L. 
Ed.  414,  18  Sup.  Ct.  45.  Dissimilar  conditions.  Gustin  v.  Bur- 
lington &  M.  R.  R.  Co.,  8  I.  C.  C.  481 ;  Marten  v.  L.  &  N.  R.  Co., 
9  I.  C.  C.  581.  Facts  not  authorizing  the  difference  existing  be- 
tween the  long  and  short  haul  rates.  Board  of  Trade  of  Hamp- 
ton V.  X.  C.  &  St.  L.  Ry.  Co.,  8  I.  C.  C.  503.  Order  not  enforced. 
Int.  Com.  Com.  v.  N.  C.  &  St.  L.  Ry.  Co.,  120  Fed.  934.  De- 
murrage charges  not  within  section.  Penn.  Millers'  State  Asso. 
V.  Philadelphia  &  R.  Ry.  Co.,  8  I.  C.  C.  531.  All  forms  of  com- 
petition must  be  considered,  but  in  each  case  it  is  a  question  of 
fact  as  to  the  effect  to  be  given  such  competition.  Holdzkom  v. 
Mich.  Cent.  Ry.  Co.,  9  I.  C.  C.  42;  Dallas  Freight  Bureau  v. 
Austin  &  X.  W.  R.  Co.,  9  I.  C.  C.  68.  Carrier  may  meet  compe- 
tition of  shorter  line.  Ulrick  v.  Lake  Shore,  etc.,  Ry.  Co.,  9  T. 
C.  C.  495.  Competitive  conditions  at  Kansas  City  entitle  her  to 
a  lower  rate  to  Texas  ports  than  Wichita.  Mayor,  etc.,  of  Wich- 
ita V.  A.  T.  &  S.  F.  Ry.  Co.,  9  I.  C.  C.  534,  558,  citing  Supreme 
Court  decisions  since  the  case  of  Johnston,  etc.,  Dry  Goods  Co. 
V.  A.  T.  &  S.  F.  Ry.  Co.,  6  I.  C.  C.  568 ;  see  also  same  plaintiff 
V.  New  York  &  Tex.  S.  S.  Co.,  12  I.  C.  C.  58.  Higher  rate  to 
Chattanooga  than  to  Nashville  the  longer  distance  not  illegal 
under  the  circumstances.  Chamber  of  Commerce  of  Chattanooga 
V.  So.  Ry.  Co.,  10  I.  C.  C.  Ill,  citing  and  following  previous 
holding  of  Supreme  Court  in  same  case,  181  U.  S.  29,  45  L. 
Ed.  729,  21  Sup.  Ct.  512.     Same  holding  as  to  cities  in  Alabama 


§  348.]  Annotated.  509 

and  Mississippi.  Aberdeen  Group  Commercial  Asso.  v.  M.  &  O. 
R.  Co.,  10  I.  C.  C.  289.  As  to  cities  in  Florida.  Rock  Hill  Buggy 
Co.  V.  So.  Ry.  Co.,  11  I.  C.  C.  229.  Difference  greater  than  sec- 
tion justified.  Gardner  &  Clark  v.  So.  Ry.  Co.,  10  I.  C.  C.  342; 
Lehman-Higginson  Grocery  Co.  v.  A.  T.  &  S.  F.  R.  Co.,  10  I. 
C.  C.  460.  Burden  on  carrier  to  show  circumstances  justifying 
greater  change  for  shorter  haul.  Geo.  M.  Speigle  Co.  v.  Chesa- 
peake &  O.  Ry.  Co.,  11  I.  C.  C.  367.  Section  not  violated. 
Dewey  Bros.  Co.  v.  B.  &  O.  R.  Co.,  11  I.  C.  C.  475;  Griffin  Gro- 
cery Co.  V.  So.  Ry.  Co.,  11  I.  C.  C.  322;  Farrar  v.  So.  Ry.  Co., 

11  I.  C.  C.  632;  Hastings  Alalting  Co.  v.  Chicago,  M.  &  St.  P. 
Ry.  Co.,  11  I.  C.  C.  675;  Village  of  Goodhue  v.  Chicago  G.  W. 
Ry.  Co.,  11  I.  C.  C.  683;  Durham  v.  111.  Cent.  R.  Co.,  12  I.  C.  C. 
2>7;  Pecos  Mercantile  Co.  v.  A.  T.  &  S.  F.  Ry.  Co.,  13  I.  C.  C. 
173;  R.  R.  Com.  of  Ky.  v.  L.  &  N.  R.  Co.,  13  I.  C.  C.  300;  To- 
peka  Banana  Dealers'  Asso.  v.  St.  L.  &  S.  F.  R.  Co.,  13  I.  C.  C. 
620;  Phillips-Trawick-James  Co.  v.  So.  Pac.  Co.,  13  I.  C.  C.  644. 
A  mere  theoretical  or  paper  rate  not  sufficient  to  show  violation. 
Mo.  &  Kan.  Shippers  Asso.  v.  M.  K.  &  T.  Ry.  Co.,  12  I.  C.  C. 
483.  The  different  circumstances  must  not  only  be  clearly  sh6wn, 
but  must  also  clearly  exercise  a  potent  or  controlling  influence. 
Bovaird  Supply  Co.  v.  A.  T.  &  S.  F.  Ry.  Co.,  13  I.  C.  C.  56. 
Facts  that  entitle  the  carrier  to  charge  more  for  the  shorter 
than  the  longer  haul.  Gump.  z'.  B.  &  O.  R.  Co.,  14  I.  C.  C.  98; 
Chicago  Sash  &  Door  Asso.  v.  Norfolk  &  W.  R.  Co.,  14  I.  C.  C. 
594.  Section  violated.  Greater  Des  Moines  Com.  v.  Chicago 
G.  W.  Ry.  Co.,  14  I.  C.  C.  294.  Section  referred  to  and  held 
not  violated.  MacGillis  &  Gibbs  Co.  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  15  I.  C.  C.  329.  Section  not  affected  by  amendment  of 
June  29,  1906.  City  of  Spokane  r.  N.  Pac.  R.  Co.,  15  I.  C.  C. 
376,  388.  Competition  is  a  fact  that  justifies  a  less  charge  for 
a  longer  than  a  shorter  haul.     Ex  parte  Koehler,  31   Fed.  315, 

12  Sawy.  446 ;  Int.  Com.  Com.  v.  Cincinnati,  N.  O.  &  T.  P.  Ry. 
Co.,  56  Fed.  951.  Reversed.  162  U.  S.  184,  40  L.  Ed.  935,  16 
Sup.  Ct.  700.  Where  circumstances  and  conditions  are  not 
similar,  the  law  does  not  apply.  When  there  is  doubt  as  to 
whether  or  not  there  is  a  diff'erence,  application  for  relief  should 
be  made  to  the  Commission.  Mo.  Pac.  Ry.  Co.  v.  Tex.  &  Pac. 
Ry.  Co.,  31  Fed.  862.  That  the  rate  for  the  longer  haul  was  a 
joint  rate  will  not  relieve  from  section.  Jun'od  v.  Chicago  &  N. 
W.  Ry.  Co.,  47  Fed.  290;  Osborne  v.  Chicago  &  N.  W.  Ry.  Co., 


510  Acts  Regulating  Commerce,  [§  348. 

48  Fed.  49.  Reversed  on  this  point.  Chicago  &  N..  W.  v.  Os- 
borne, 52  Fed.  912,  3  C.  C.  A.  347.  Followed,  United  States  v. 
Mellen,  53  Fed.  229;  Parsons  v.  Chicago  &  N.  W.  Ry.  Co.,  63 
Fed.  903,  11  C.  C.  A.  489,  37  U.  S.  App.  389.  Affirmed.  167  U. 
S.  447,  42  L.  Ed.  231,  17  Sup.  Ct.  887;  Int.  Com.  Com.  v.  Ala- 
bama M.  Ry.  Co.,  69  Fed.  227.  Affirmed.  74  Fed.  715,  21  C.  C. 
A.  51,  168  U.  S.  144,  42  L.  Ed.  414,  18  Sup.  Ct.  45.  The  carrier 
may  act  under  the  proviso  without  first  applying  to  the  Commis- 
sion, though  the  Commission  has  the  right  to  revise  this  action. 
Int.  Com.  Com.  v.  A.  T.  &  S.  F.  R.  Co.,  50  Fed.  295,  300;  Detroit, 
G.  H.  &  M.  Ry.  Co.  V.  Int.  Com.  Com.,  74  Fed.  803,  819,  21  C. 
C.  A.  103,  AZ  U.  S.  App.  308,  reversing  57  Fed.  1005,  4  I.  C.  R. 
722.  Affirmed.  167  U.  S.  633,  42  L.  Ed.  306,  17  Sup.  Ct.  986. 
Where  the  more  distant  point  can  be  reached  .by  rail  and  water 
and  the  less  distant  by  only  one  rail  carrier,  the  circumstances 
are  not  similar.  Behlmer  v.  L.  &  N.  R.  Co.,  71  Fed.  835.  Re- 
versed. 83  Fed.  898,  28  C.  C.  A.  229.  Decree  of  circuit  court 
of  appeals  reversed.  L.  &  N.  R.  Co.  v.  Behlmer,  175  U.  S.  648, 
44  L.  Ed.  309,  20  Sup.  Ct.  209.  This  section  does  not  prevent 
common  carriers  from  making  special  rates  to  meet  competition 
and  increase  their  business.  Int.  Com.  Com.  v.  Alabama  M.  R. 
Co..  74  Fed.  715,  723,  724,  21  C.  C.  A.  51,  41  U.  S.  App.  453, 
5  I.  C.  R.  685.  Charges  for  delivery,  storage,  etc.,  are  included 
within  meaning  of  section.  Detroit,  G.  H.  &  M.  Ry.  Co.  v.  Int. 
Com.  Com.,  74  Fed.  803.  Competition  to  justify  a  greater 
charge  for  the  shorter  haul  must  be  of  that  kind  which  could 
carry  the  freight  to  the  longer  distance  point  if  the  carrier 
making  such  charge  did  not.  Behlmer  v.  L.  &  N.  R.  Co.,  83  Fed. 
898,  906.  Reversed.  L.  &  N.  R.  Co.  v.  Behlmer,  175  U.  S.  648, 
44  L.  Ed.  309,  20  Sup.  Ct.  209.  Competition  between  rival 
rail  carriers  must  be  considered  in  determining  whether  or  not 
dissimilar  conditions  exist.  Brewer  v.  Central  of  Ga.  Ry.  Co., 
84  Fed.  258.  Mere  dissimilarity  insufficient,  must  be  sufficient 
to  justify  the  difference  in  the  charge.  Int.  Com.  Com.  v.  East 
Tenn.,  Va.  &  Ga.  Ry.  Co.,  85  Fed.  107.  Affirmed,  99  Fed.  52, 
39  C.  C.  A.  413.  Reversed.  East  Tenn.,  Va.  &  Ga.  Ry.  Co.  v. 
Int.  Com.  Com.,  181  U.  S.  1,  45  L.  Ed.  719,  21  Sup.  Ct.  516. 
What  facts  constitute  dissimilar  conditions.  Int.  Com.  Com.  v. 
Western  &  A.  R.  Co.,  88  Fed.  186.  Affirmed.  93  Fed.  83,  35 
C.  C.  A.  217,  181  U.  S.  29,  45  L.  Ed.  729,  21  Sup.  Ct.  512. 
Discrimination  can  not  be  justified  where  the  dissimilar  condi- 


§  348.]  Annotated.  511 

tions  are  created  by  roads  strifling  competition.  East  Tenn., 
Va.  &  Ga.  Ry.  Co.  v.  Int.  Com.  Com.,  99  Fed.  52,  62,  63,  39  C. 
C.  A.  413.  Reversed  by  Supreme  Court.  181  U.  S.  1,  45  L.  Ed. 
719,  21  Sup.  Ct.  516.  Commission  finding  that  the  rate  for  the 
shorter  haul  illegal  will  not  be  set  aside  unless  error  clearly 
appears.  Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  102  Fed.  709.  Re- 
versed. 108  Fed.  988,  46  C.  C.  A.  685,  190  U.  S.  273,  47  L.  Ed. 
1047,  23  Sup.  Ct.  687.  The  Commission  must  consider  the  evi- 
dence showing  all  kinds  of  competition.  Int.  Com.  Com.  v.  So. 
Ry.  Co.,  105  Fed.  705.  Evidence  showing  no  violation  of  this 
section  will  show  that  there  is  no  violation  of  section  three.  Int. 
Com.  Com.  v.  Nashville,  C.  &  St.  L.  Ry.  Co.,  120  Fed.  934.  The 
questi'on  of  whether  or  not  circumstances  are  or  are  not  dissim- 
ilar is  one  of  fact  peculiarly  within  the  province  of  the  Commis- 
sion to  determine.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Int.  Com. 
Com.,  162  U.  S.  184,  194,. 40  L.  Ed., 935,  938,  16  Sup.  Ct.  700. 
Section  relates  only  to  transportation  by  rail  and  charges  there- 
for and  not  to  cartage.  Int.  Com.  Com.  v.  Detroit,  G.  H.  &  M.  R. 
Co.,  167  U.  S.  633,  644,  42  L.  Ed.  306,  309,  17  Sup.  Ct.  986.  All 
competition  will  not  justify  the  greater  charge  for  the  shorter 
haul.  Carrier  need  not  first  apply  to  the  Commission  be- 
fore acting  on  dissimilar  conditions.  Int.  Com.  Com.  v. 
Alabama  M.  R.  Co.,  168  U.  S.  144,  167,  169,  42  L.  Ed. 
414,  423,  424,  18  Sup.  Ct.  45.  This  case  as  said  by  Mr.  Justice 
Harlan,  dissenting  goes  a  long  ways  to  make  the  Commission  a 
useless  body.  Market  competition,  and  competition  of 
carriers  subject  to  act  must  be  considered  by  the  Commission 
I,.  N.  R.  Co.  V.  Behlmer,  175  U.  S.  648,  44  L.  Ed.  309, 
20  Sup.  Ct.  209;  East  Tenn.,  Va.  &  Ga.  Ry.  Co.  v.  Int.  Com. 
Com.,  181  U.  S.  1,  45  L.  Ed.  719,  21  Sup.  Ct.  516;  Int.  Com. 
Com.  7'.  Clyde  S.  S.  Co.,  181  U.  S.  29,  45  L.  Ed.  729,  21  Sup. 
Ct.  512.  Possibility  of  competition  at  the  shorter  distance  point 
not  material.  Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  190  U.  S.  273, 
47  L.  Ed.  1047,  23  Sup.  Ct.  687.  In  fixing  rates  carriers  may 
take  into  consideration  genuine  competition  with  other  carriers. 
Int.  Com.  Com.  v.  Chicago  G.  W.  R.  Co.,  209  U.  S.  108,  119,  52 
L.  Ed.  705,  712,  28  Sup.  Ct.  493. 

Section  ])roposes  an  equitable  rule.  Morse  Bros.  Co.  v.  C.  R. 
I.  P.  Ry.  Co.,  16  I.  C.  C.  550,  552. 

Section  applied— Hewitt  &  Conno  v.  C.  &  N.  W.  R.  Co.,  16 
I.  C.  C.  431,  434;  Heileman  P.rewing  Co.  v.  C.  M.  &  St.  P.  Ry. 


512  Acts  Regulating  Commerce,  [§  348. 

Co..  16  I.  C.  C.  386.  Burden  on  carrier  to  show  different  "cir- 
cumstances and  conditions."  Castens  Packing  Co.  v.  O.  S.  L.  R. 
R.  Co.,  17  I.  C.  C.  324,  326. 

Notes  to  Section  as  Amended. 

Old  and  new  sections  copied  and  amended  section  applied. 
Railroad  Commission  of  Nevada  v.  S.  P.  Co.,  21  I.  C.  C.  329; 
City  of  Spokane  v.  N.  P.  Ry.  Co.,  21  I.  C.  C.  400.  In  each  of 
these  cases  applications  for  relief  made  under  the  fourth  section 
were  considered  and  determined.  These  cases  have  been  des- 
ignated in  the  courts  as  the  Intermountain  cases.  Orders  of  the 
Commission  held  invalid.  A.  T.  &  S.  F.  Ry.  Co.  v.  United  States, 
191  Fed.  856,  Op.  Com.  Ct.  50,  51,  p.  229.  The  section  as 
amended  held  valid,  the  Commerce  Court  reversed  and  the  Com- 
mission sustained.  U.  S.  v.  A.  T.  &  S.  F.  Ry.  Co.,  234  U.  S.  476, 
58  L.  Ed.  1408,  34  Sup.  Ct.  986,  in  the  opinions  see  citation  of 
cases,  under  old  statute.  Competition  between  different  railways 
not  sufficient  to  authorize  relief  under  section.  Transportation 
of  lime  in  carloads,  21  I.  C.  C.  170,  172.  No  violation  of  Section 
shown.  Wright  Wire  Co.  v.  P.  &  L.  E.  R.  R.  Co.,  21  I.  C.  C.  64 ; 
Merchants  Freight  Bureau  v.  M.  P.  Ry.  Co.,  21  I.  C.  C.  573. 
May  determine  complaint  under  Section  3  although  application 
for  relief  under  Sec.  4  is  pending.  ]\Iayor,  etc.,  of  Boston,  Ga. 
V.  A.  C.  L.  R.  Co.,  24  I.  C.  C.  50.  Fifteen  per  cent  excess  mile- 
age constitutes  a  circuitous  route  justifying  the  granting  of  re- 
lief under  section, — .  Application  for  Relief  under  Fourth  Section 
in  Regard  to  Rates  on  Salt,  24  I.  C.  C.  192,  195.  Bowling  Green 
Bus.  Men's  Ass'n  v.  L.  &  N.  R.  Co.,  24  I.  C.  C.  228 ;  Edwards  & 
Bradford  Lumber  Co.  v.  C.  B.  &  Q.  R.  R.  Co.,  25  I.  C.  C.  93 ; 
Alton  Board  of  Trade  v.  C.  &  A.  R.  R.  Co.,  25  I.  C.  C.  589; 
Standard  Oil  Co.  v.  P.  Co.,  29  I.  C.  C.  524;  Fort  Scott  Industrial 
Ass'n  V.  St.  L.  &  S.  F.  R.  R.  Co.,  29  I.  C.  C.  629;  Rates  on 
Tropical  Fruits  from  Gulf  Ports,  30  I.  C.  C.  621.  Section  Vio- 
lated. Kellogg  Toasted  Corn  Flakes  Co.  v.  M.  C.  R.  R.  Co.,  24 
I.  C.  C.  604,  and  stating  that  over  5,000  applications  for  relief 
had  been  filed.  No  award  of  damages  for  violation  of  Section, 
prior  to  date  of  order  denying  application,  Appalachia  Lum- 
ber Co.  V.  L.  &  N.  R.  R.  Co.,  25  I.  C.  C.  193,  197; 
Janesville  Clothing  Co.  v.  C.  &  N.  W.  Ry.  Co..  26  I.  C.  C. 
628,    630.    Burden  placed  on  carriers  to  show  they  were  entitled 


§  349.]  Annotated.  513 

to  relief.  Commercial  Club  of  Duluth  v.  B.  &  O.  R.  R.  Co.,  27 
I.  C.  C.  639,  660.  Section  violated  and  relief  therefrom  denied 
Maier  &  Co.  v.  S.  P.  Co.,  29  I.  C.  C.  103.  Fourth  Section  viola- 
tion should  not  extend  beyond  the  real  necessity  of  the  competi- 
tive or  other  controlling  influences.  Emlenton  Petroleum  Rates,  29 
I.  C.  C.  519,  521.  Southeastern  situation  discussed  and  rules 
prescribed.  Fourth  Section  Violations  in  the  Southeast,  30  I.  C. 
C.  153-336.  Water  competition  considered.  Rates  on  Sugar,  31 
I.  C.  C.  495;  Fourth  Section  Violation  in  Rates  on  Sugar,  31 
I.  C.  C.  511.  The  burden  is  on  the  carrier  to  show  special  cir- 
cumstances entitling  it  to  relief.  Louisville  &  N.  R.  Co.  v.  United 
States,  225  Fed.  511.  Substance  and  not  mere  form  considered. 
U.  S.  V.  L.  &  N.  R.  R.  Co.,  235  U.  S.  314,  59  L.  Ed.  —  35  Sup. 
Ct.  113;  Duncan  v.  N.  C.  &  St.  L.  R.  Co.,  35  I.  C.  C.  477. 

§  349.  Relief  from  Long  and  Short  Haul  Clause. — Pro- 
vided, however,  That  upon  application  to  the  Interstate  Com- 
merce Commission  such  common  carrier  may  in  special  cases, 
after  investigation,  be  authorized  by  the  Commission  to  charge 
less  for  longer  than  for  shorter  distances  for  the  transportation 
of  "passengers  or  property;  and  the  Commission  may  from  time 
to  time  prescribe  the  extent  to  which  such  designated  common 
carrier  may  be  relieved  from  the  operation  of  this  section. 

Added  by  amendment  of  June  18,  1910.  For  annotations  see 
next  preceding  section. 

§  350.  Section  Not  to  Apply  for  Six  Months, — Provided 
further.  That  no  rates  or  charges  lawfully  existing  at  the  time 
of  the  passage  of  this  amendatory  act  shall  be  required  to  be 
changed  by  reason  of  the  provisions  of  this  section  prior  to  the 
expiration  of  six  months  after  the  passage  of  this  act,  nor  in  any 
case  where  application  shall  have  been  filed  before  the  Commis- 
sion, in  accordance  with  the  provisions  of  this  section,  until  a 
determination  of  such  application  by  the  Commission. 

Added  by  amendment  of  June  18,  1910.  Section  quoted, 
Colorado  Coal  Traffic  Ass'n  v.  C.  &  S.  R.  Co.,  19  I.  C.  C.  478. 

§  351.  Rates  Reduced  by  Competition  with  Water 
Routes — Not  Increased  When. — Whenever  a  carrier  by  rail- 
road shall  in  comjjetition  with  a  water  route  or  routes  reduce  the 
rates  on  the  carriage  of  any  species  of  freight  to  or  from  compet- 
itive points,  it  shall  not  be  permitted  to  increase  such  rates  un- 
less after  hearing  by  the   Interstate  Commerce   Commission   it 

—17 


514  Acts  Regulating  Commerce,  [§  352. 

shall  be  found  that  such  proposed  increase  rests  upon  changed 
conditions  other  than  the  elimination  of  water  competition. 

Suspension  of  lake  navigation  during  winter  not  an  "elimination 
of  water  competition."  Am.  Insulated  Wire  &  Cable  Co.  v.  C.  & 
X.  W.  Ry.  Co.,  26  I.  C.  C.  415,  416.  Not  determined  whether 
or  not  Section  applies  to  rates  reduced  before  date  of  amend- 
ment, although  in  quoting  the  Section  the  word  "shall"  is 
italicized.    Pig  Iron  Rates  from  Va.  to  Pa.,  27  I.  C.  C.  343,  345. 

§  352.  Pooling  of  Freights  and  Division  of  Earnings 
Prohibited. — That  it  shall  be  unlawful  for  any  common  carrier 
subject  to  the  provisions  of  this  act  to  enter  into  any  contract, 
agreement,  or  combination  with  any  other  common  carrier  or 
carriers  for  the  pooling  of  freights  of  different  and  competing 
railroads,  or  to  divide  between  them  the  aggregate  or  net  pro- 
ceeds of  the  earnings  of  such  railroads,  or  any  portion  thereof ; 
and  in  any  case  of  an  agreement  for  the  pooling  of  freights  as 
aforesaid,  each  day  of  its  continuance  shall  be  deemed  a  separate 
ofifense. 

Section  five  of  original  act. 

The  Canadian  Act,  Canadian  Railway  Law  by  MacMurchy  & 
Denison,  501,  is  as  follows: 

"No  company  shall,  except  in  accordance  with  the  provisions 
of  this  act,  directly  or  indirectly,  pool  its  freights  or  tolls  with 
the  freights  or  tolls  of  any  other  railway  company  or  common 
carrier,  nor  divide  its  earnings  or  any  portion  thereof  with  any 
other  railway  company  or  common  carrier,  nor  enter  into  any 
contract,  arrangement,  agreement,  or  combination  to  effect,  or 
which  may  effect,  any  such  result,  without  leave  therefor  having 
been  obtained  from  the  board." 

In  the  same  volume,  p.  502,  referring  to  this  act,  it  is  stated: 

"Railroad  pools  are  not  contrary  to  public  policy  in  Eng- 
land or  in  Canada.  Section  284  of  the  Railway  Act,  which  is 
similar  in  its  terms  to  section  87  of  the  Railway  Clauses  Act, 
1845,  permits  working  or  traffic  agreements:  See  Hare  v.  L.  & 
N.  W.  R.  Co.,  2  J.  &  H.  480.  30  L.  J.  Ch.  817.  Two  companies 
having  the  same  termini,  may,  in  order  to  avoid  competition, 
come  to  an  agreement  with  reference  to  traffic  along  existing 
routes  on  their  lines,  with  a  view  to  distribute  such  traffic,  and 
the  revenue  derived  from  it,  between  the  two  companies.  This 
case  was   followed   in   Great  Western  R.   Co.  v.   Grand  Trunk 


§  352.]  Annotated.  515 

R.  W.  Co.,  25  U.  C.  R.  }>7,  and  Campbell  v.  Northern  R.  W.  Co., 
26  Gr.  522." 

Pooling  between  a  rail  carrier  subject  to  the  act  and  a  pipe 
line  not  subject  not  within  prohibition  of  section.  Independent 
Refiners'  Asso.  v.  Western  New  York  &  Penn.  R.  Co.,  5  I.  C. 
C  415,  4  I.  C.  R.  162.  Fines  of  carriers  for  violating  an 
agreement  to  divide  traffic  within  section.  Freight  Bureau  of 
Cincinnati  v.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  6  I.  C.  C.  195, 
4  I.  C.  R.  592.  Order  not  enforced.  Int.  Com.  Com.  v.  Cin- 
cinnati, N.  O.  &  T.  R.  Co.,  16  Fed.  183,  167  U.  S.  479,  42  L. 
Ed.  243,  17  Sup.  Ct.  896.  A  pool  may  be  formed  by  agreements 
as  to  routing.  Consolidated  Forwarding  Co.  v.  So.  Pac.  Co.,  9 
I.  C.  C.  182,  206-a.  Order  enforced.  Int.  Com.  Com.  v.  So. 
Pac.  Co.,  132  Fed.  829.  Reversed.  So.  Pac.  Co.  v.  Int.  Com. 
Com.,  200  U.  S.  536,  50  L.  Ed.  585,  26  Sup.  Ct.  330;  Consoli- 
dated Forwarding  Co.  v.  So.  Pac.  Co.,, 10  I.  C.  C.  590.  Doubt- 
ful whether  a  pool  of  passenger  earnings  from  immigrant  traffic 
in  violation  of  section.  Re  Transportation  of  Immigrants,  10 
I.  C.  C.  13.  Purpose  of  section  to  prevent  restriction  of  com- 
petition. Tift  V.  So.  Ry.  Co.,  10  I.  C.  C.  548,  580.  Order  en- 
forced. 138  Fed.  753;  So.  Ry.  Co.  v.  Tift,  148  Fed.  1021,  206 
U.  S.  428,  51  L.  Ed.  1124,  27  Sup.  Ct.  709.  Pooling  by  water 
carriers  not  within  section.  Cosmopolitan  Shipping  Co.  v.  Ham- 
burg-American P.  Co.,  13  I.  C.  C.  266,  274.  It  was  not  the 
intention  of  the  interstate  commerce  act  to  include  carriers 
within  the  Sherman  Anti-Trust  Act.  United  States  v.  Trans- 
Missouri  Freight  Asso.,  53  Fed.  440,  1  Fed.  Anti-Trust  Dec.  80. 
Affirmed,  holding  that  combinations  in  restraint  of  trade  must 
be  unreasonable  to  be  illegal.  United  States  v.  Trans-Missouri 
Freight  Asso.,  58  Fed.  58,  7Z,  7  C.  C.  A.  15,  97,  24  L.  R.  A.  7Z, 
1  Fed.  Anti-Trust  Dec.  186.  Reversed,  holding  that  the  Sher- 
man Anti-Trust  Act  applies  to  carriers,  that  all  contracts  in  re- 
straint of  trade,  whether  or  not  such  restraint  is  unreasonable, 
are  illegal.  United  States  v.  Trans-Missouri  Freight  Asso.,  166 
U.  S.  290,  41  L.  Ed.  1007,  17  Sup.  Ct.  540,  1  Fed.  Anti-Trust 
Dec.  648.  A  contract  between  thirty-two  carriers  to  maintain 
rates  is  not  violative  of  section.  United  States  v.  Joint  Traffic 
Asso.,  76  Fed.  895,  1  Fed.  Anti-Trust  Dec.  615.  Affirmed,  89 
Fed.  1020,  32  CCA.  491,  45  U.  S.  App.  726,  1  Fed.  Anti-Trust 
Dec.  869.  Reversed,  holding  that  any  contract  restricting  com- 
petition in    interstate    trade    is    illegal.     United  States  v.  Joint 


516  Acts  Regulating  Commerce,  [§  353. 

Traffic  Asso.,  171  U.  S.  505,  43  L.  Ed.  259,  19  Sup.  Ct.  25,  1  Fed. 
Anti-Trust  Dec.  869.  Any  arrangement,  oral  or  otherwise,  re- 
sulting in  the  division  of  earnings  of  competing  carriers  is  il- 
legal and  violates  section.  Re  Pooling  Freights,  115  Fed.  588. 
Followed  Int.  Com.  Com.  z:  So.  Pac.  Co.,  132  Fed.  529,  839. 
Tonnage  pool  efifective  by  initial  carrier  routing  freight  illegal. 
Int.  Com.  Com.  v.  So.  Pac.  Co.,  123  Fed.  597,  602,  132  Fed. 
829,  137  Fed.  606.  Reversed,  holding  that  practice  did  not  con- 
stitute a  pooling  agreement.  So.  Pac.  Co.  v.  Int.  Com.  Com., 
200  U.  S.  536,  50  L.  Ed.  585,  26  Sup.  Ct.  330.  Efifect  on  rates 
of  a  combination  to  fix  rates.  Tift  z'.  So.  Ry.  Co.,  138  Fed.  753, 
760,  761,  762,  763.  Affirmed.  So.  Ry.  Co.  v.  Tift,  206  U.  S. 
428,  51  L.  Ed.  1124.  27  Sup.  Ct.  709. 

Notes   of  Decision   Since  1909. 

Section  not  violated.  Ritter  v.  O.  S.  L.  R.  R.  Co.,  19  I.  C.  C. 
443,  447. 

§  353.  Rail  Carrier  Not  to  Own  Competing  Water  Car- 
riers.— From  and  after  the  first  day  of  July,  nineteen  hundred 
and  fourteen,  it  shall  be  unlawful  for  any  railroad  company  or 
other  common  carrier  subject  to  the  act  to  regulate  commerce  to 
own,  lease,  operate,  control,  or  have  any  interest  whatsoever  (by 
stock  ownership  or  otherwise,  either  directly,  indirectly,  through 
any  holding  company,  or  by  stock  holders  or  directors  in  com- 
mon, or  in  any  other  manner)  in  any  common  carrier  by  water 
operated  through  the  Panama  Canal  or  elsewhere  with  which 
said  railroad  or  other  carrier  aforesaid  does  or  may  compete  for 
traffic  or  any  vessel  carrying  freight  or  passengers  upon  said 
water  route  or  elsewhere  with  which  said  railroad  or  other  car- 
rier aforesaid  does  or  may  compete  for  traffic :  and  in  case  of  the 
violation  of  this  provision  each  day  in  which  such  violation  con- 
tinues shall  be  deemed  a  separate  ofifense. 

Added  by  amendment  of  August  24,  1912.  Known  as  Panama 
Canal  Act. 

§  354.  Whether  or  Not  Competition  Exists  to  Be  De- 
termined by  the  Commission. — Jurisdiction  is  hereby  con- 
ferred on  the  Interstate  Commerce  Commission  to  determine 
questions  of  fact  as  to  the  competition  or  possibility  of  competi- 
tion, after  full  hearing,  on  the  application  of  any  railroad  com- 
pany or  other  carrier.  Such  application  may  be  filed  for  the  pur- 
pose of  determining  whether  any  existing  service  is  in  violation 


§  354.]  Annotated.  517 

of  this  section  and  pray  for  an  order  permitting  the  continuance 
cf  any  vessel  or  vessels  already  in  operation,  or  for  the  purpose 
of  asking  an  order  to  install  new  service  not  in  conflict  with  the 
provisions  of  this  paragraph.  The  Commission  may  on  its  own 
motion  or  the  application  of  any  shipper  institute  proceedings  to 
inquire  into  the  operation  of  any  vessel  in  use  by  any  railroad  or 
other  carrier  which  has  not  applied  to  the  Commission  and  had 
the  question  of  competition  or  the  possibility  of  competition  de- 
termined as  herein  provided.  In  all  such  cases  the  order  of  said 
Commission  shall  be  final. 

Added  by  amendment  of  Aug.  24,  1912.  On  April  14,  1914  the 
Commission  issued  the  following  conference  ruling: 

461.  Water  carriers  controlled  by  other  common  carriers. — 
Section  5  of  the  act  as  amended  by  the  Panama  Canal  Act  pro- 
hibits common  carriers  subject  to  the  act  to  have,  after  July  1, 
1914,  any  interest,  directly  or  indirectly,  in  any  common  carrier 
by  water,  or  any  vessel  carrying  freight  or  passengers,  with 
which  said  carrier  does  or  may  compete  for  traffic. 

The  manifest  purpose  of  this  law  is  to  bring  about  discontin- 
uance of  common  ownership  or  control  of  water  carriers  except 
in  those  instances  in  which,  after  investigation  and  hearing,  it  is 
found  that  such  operation  is  in  the  interest  of  the  public  or  of 
advantage  to  the  convenience  and  commerce  of  the  people,  and 
neither  excludes,  prevents,  nor  reduces  competition  on  the  route 
by  water.  The  act  does  not  in  specitic  words  authorize  the  con- 
tinuance of  such  common  ownership  or  control  beyond  July  1, 
1914,  pending  the  decision  of  the  Commission  on  application  rel- 
ative thereto ;  but  it  is  provided  that  any  application  filed  before 
July  1,  1914,  may  be  considered  and  granted  thereafter.  It  is 
not  conceivable  that  the  Congress  intended  that  the  service 
should  be  withdrawn  from  the  public  on  July  1,  1914,  if  for  good 
and  sufficient  reasons  it  had  been  impossible  for  the  Commission 
to  determine  the  questions  presented  in  the  application  before 
that  date.  Although  the  language  employed  is  different,  it  seems 
that  the  legislative  intent  was  similar  to  that  expressed  in  the 
amended  fourth  section  of  the  act  and  in  the  safety  appliance 
acts. 

The  Commission  therefore  interprets  the  amendment  to  section 
5  of  the  act  as  contemplating  and  authorizing  a  continuance  of 
any  existing  common  ownership  or  control  after  July  1,  1914, 
between  rail  and  other  carriers  and  water  carriers  not  travers- 


518  Acts  Regulating  Commerce,  [§  355. 

\ng  the  Panama  Canal  until  such  time  as  the  Commission  has 
[tassed  upon  the  application  relative  thereto,  provided  such  ap- 
plication is  filed  with  the  Commission  prior  to  July  1,  1914. 

"May  compete  for  traffic,"  "existing  specified  service  by 
water,"  "through  the  Panama  Canal,"  defined  and  statute  dis- 
cussed. Application  S.  P.  Co.,  32  I.  C.  C.  690.  Continued  own- 
ership not  shown  to  be  "in  the  interest  of  the  public,"  S.  P.  Co. — 
Ownership  of  Schooner  Pasadena,  33  I.  C.  C.  476.  "The  pur- 
pose of  the  Panama  Canal  act  was  to  preserve  to  the  common 
interest  of  the  people,  free  and  unfettered  the  'water  road  bed' 
via  the  Panama  Canal."  Lake  Line  Application  Under  Panama 
Canal  Act,  33  1.  C.  C.  699.  Though  all  rail  lines  and  joint  rates 
make  competition  within  meaning  of  act.  Application  Penn.  Co., 
34  L  C.  C.  47.  Ferry  boat  included  in  meaning  of  act.  Applica- 
tion Grand  Trunk  Railway  Co.,  34  L  C.  C.  49.  B.  R.  &  P.  Ry. 
Co.,  Operation  of  Car  Ferry,  34  I.  C.  C.  52;  G.  T.  W.  Ry.  Co., 
Operation  Car  Ferry,  34  L  C.  C.  54. 

"A  rail  carrier  does  not  necessarily  have  to  reach  a  point  in 
order  to  compete  with  water  carriers  that  operate  directly  to  that 
point,  but  that  such  competition  may  exist  by  the  rail  carrier's 
participation  in  joint  rates."  S.  P.  Co.  Ownership  of  Oil  Steamer, 
34  L  C.  C.  77  ■  A.  A.  R.  R.  Co.,  Operation  Car  Ferry  Boats,  34 
1.  C.  C.  83  ;  P.  M.  &  B.  L.  E.  R.  R.  Co.,  Operation  of  Car  Ferry 
Boats,  34  I.  C.  C.  86.  Competition  found  not  to  exist.  S.  P. 
Co.,  Steamboats  Sacramento  River,  34  L  C.  C.  174.  Steamer 
Lines  on  Chesapeake  Bay,  35  I.  C.  C.  692  applying  the  section. 
For  other  applications  acted  on  see  Application  of  Duluth  South 
Shore  &  A.  R.  Co.,  et  al,  33  I.  C.  C.  229;  Application  of  Spo- 
kane P.  &  S.  R.  Co.,  34  L  C.  C.  462;  Application  of  S.  P.  Co.,  34 
L  C.  C.  648. 

§  355.  Commission  May  Relieve  from  Provision. — If  the 
Interstate  Commerce  Commission  shall  be  of  the  opinion  that 
any  such  existing  specified  service  by  water  other  than  through 
the  Panama  Canal  is  being  operated  in  the  interest  of  the  public 
and  is  of  advantage  to  the  convenience  and  commerce  of  the 
people,  and  that  such  extension  will  neither  exclude,  prevent,  nor 
reduce  competition  on  the  route  by  water  under  consideration, 
the  Interstate  Commerce  Commission  may,  by  order,  extend  the 
time  during  which  such  service  by  water  may  continue  to  be  op- 
erated beyond  July  first,  nineteen  hundred  and  fourteen. 


§  356.]  Annotated.  519 

Added  by  amendment  of  Aug.  24,  1912.  See  preceding  section 
for  annotations. 

§  356.  Water  Carriers  to  File  Tariffs. — In  every  case  of 
such  extension  the  rates,  schedules,  and  practices  of  such  water 
carrier  shall  be  filed  with  the  Interstate  Commerce  Commission 
and  shall  be  subject  to  the  act  to  regulate  commerce  and  all 
amendments  thereto  in  the  same  manner  and  to  the  same  ex- 
tent as  is  the  railroad  or  other  common  carrier  controlling  such 
water  carrier  or  interested  in  any  manner  in  its  operation :  Pro- 
I'ided,  Any  application  for  extension  under  the  terms  of  this 
provision  filed  with  the  Interstate  Commerce  Commission  prior 
to  July  first,  nineteen  hundred  and  fourteen,  but  for  any  reason 
not  heard  and  disposed  of  before  said  date,  may  be  considered 
and  granted  thereafter. 

Added  by  amendment  of  Aug.  24,  1912. 

§  357.  Violators  of  Sherman  Anti-Trust  Act  Not  to  Use 
Panama  Canal. — No  vessel  permitted  to  engage  in  the  coast- 
wise or  foreign  trade  of  the  United  States  shall  be  permitted  to 
enter  or  pass  through  said  canal  if  such  ship  is  owned,  chartered, 
operated,  or  controlled  by  any  person  or  company  which  is  doing 
business  in  violation  of  the  provisions  of  the  act  of  Congress  ap- 
proved July  second,  eighteen  hundred  and  ninety,  entitled  "An 
act  to  protect  trade  and  commerce  against  unlawful  restraints 
and  monopolies,"  or  the  provisions  of  sections  seventy-three  to 
seventy-seven,  both  inclusive,  of  an  act  approved  August  twen- 
ty-seventh, eighteen  hundred  and  ninety-four,  entitled  "An  Act 
to  reduce  taxation,  to  provide  revenue  for  the  Government,  and 
for  other  purposes,"  or  the  provisions  of  any  other  act  of  Con- 
gress amending  or  supplementing  the  said  act  of  July  second, 
eighteen  hundred  and  ninety,  commonly  known  as  the  Sherman 
Anti-Trust  Act,  and  amendments  thereto,  or  said  sections  of  the 
act  of  August  twenty-seventh,  eighteen  hundred  and  ninety-four. 
The  question  of  fact  may  be  determined  by  the  judgment  of  any 
court  of  the  United  States  of  competent  jurisdiction  in  any 
cause  pending  before  it  to  which  the  owners  or  operators  of 
<^uch  ship  are  parties.  Suit  may  be  brought  by  any  shipper  or  by 
the  Attorney  General  of  the  United  States. 

Added  by  amendment  of  Aug.  24,  1912. 

§  358.  Carriers  Shall  File,  Print  and  Keep  Public  Sched- 
ules of  Rates. — That  every  common  carrier  subject  to  the  pro- 
visions of  this  act  shall  file  with  the  Commission  created  by  this 


520  Acts  Regulating  Commerce,  [§  355. 

act  and  print  and  keep  open  to  public  inspection  schedules  show- 
ing all  the  rates,  fares  and  charges  for  transportation  between 
ditYerent  points  on  its  own  route  and  between  points  on  its  own 
route  and  points  on  the  route  of  any  other  carrier  by  railroad, 
by  pipe  line,  or  by  water  when  a  through  route  and  joint  rate 
have  been  established.  If  no  joint  rate  over  the  through  route 
has  been  established,  the  several  carriers  in  such  through  route 
shall  file,  print,  and  keep,  open  to  public  inspection,  as  aforesaid, 
the  separately  established  rates,  fares  and  charges  applied  to  the 
through  transportation.  The  schedules  printed  as  aforesaid  by 
any  such  common  carrier  shall  plainly  state  the  places  between 
which  property  and  passengers  will  be  carried,  and  shall  con- 
tain the  classification  of  freight  in  force,  and  shall  also  state 
separately  all  terminal  charges,  storage  charges,  icing  charges, 
and  all  other  charges  which  the  Commission  may  require,  all 
privileges  or  facilities  granted  or  allowed  and  any  rules  or  reg- 
ulations which  in  any  wise  change,  affect,  or  determine  any  part 
or  the  aggregate  of  such  aforesaid  rates,  fares  and  charges,  or 
the  value  of  the  service  rendered  to  the  passenger,  shipper  or 
consignee.  Such  schedules  shall  be  plainly  printed  in  large  type, 
and  copies  for  the  use  of  the  public  shall  be  kept  posted  in  two 
public  and  conspicuous  places  in  every  depot,  station,  or  office 
of  such  carrier  where  passengers  or  freight,  respectively,  are  re- 
ceived for  transportation,  in  such 'form  that  they  shall  be  ac- 
cessible to  the  public  and  can  be  conveniently  inspected.  The 
provisions  of  this  section  shall  apply  to  all  traffic,  transportation 
and  facilities  defined  in  this  act. 

Paragraph  one,  section  six,  of  the  act  as  amended  June  29, 
1906.  For  the  original  act  and  the  act,  of  March  2,  1889,  see 
post,  §  364. 

See  Tariff  Circular  18-A.  for  regulations  with  reference  to 
filing  tariffs. 

One  member  of  a  traffic  association  may  file  tariffs  for  all. 
Re  Filing  Copies  of  Joint  Tariffs  by  Traffic  Combinations,  1  I. 
C.  R.  76.  Form  of  type  to  be  used.  Re  Rate  Sheets,  1  I.  C.  R. 
316.  Must  publish  tariffs  of  mileage  tickets.  Larrison  v.  Chi- 
cago &  G.  T.  R.  Co.,  1  I.  C.  C.  147,  1  I.  C.  R.  369.  Re  Pub- 
lication of  Joint  Tariffs,  1  I.  C.  R.  598.  Local  tariffs  part  of 
a  through  tariff  and  export  tariffs  should  be  filed.  Re  Filing 
of  Joint  Tarift's,  1  I.  C.  C.  657,  2  I.  C.  R.  9.  All  tariffs  should 
be    publicly    announced.     Re    Tariffs    of   the  Transcontinental 


§  358.]  Annotated.  .  521 

Lines,  2  I.  C.  C.  324,  2  I.  C.  R.  203.  Reduction  of  rate  with- 
out filing  tariff  showing  such  reduction  illegal.  Re  Passenger 
Tariffs  and  Rate  Wars,  2  I.  C.  C.  513,  2  I.  C.  R.  340.  Meth- 
ods generally  adopted  in  substantial  compliance  with  law  suf- 
ficient. Re  Passenger  Tariffs,  2  I.  C.  C.  649,  2  I.  C.  R.  445. 
Purpose  of  section.  Re  Atlanta  &  W.  P.  R.  Co.,  3  I.  C.  C.  75, 
2  I.  C.  R.  480.  Foreign  carriers  engaged  in  transportation  from 
the  United  States  to  an  adjacent  country  must  comply  with  sec- 
tion. Re  Investigation  of  Grand  Trunk  Railway,  3  I.  C.  C. 
89,  2  I.  C.  R.  496.  On  shipments  intended  to  be  exported  by 
sea,  the  tariff  should  show  rate  to  place  of  export.  New  York 
Produce  Ex.  v.  New  York  C.  &  H.  R.  R.  Co.,  3  I.  C.  C.  137, 
2  I.  C.  R.  553.  Passenger  excursion  rates  must  be  published. 
Pittsburg,  etc.,  R.  Co.  v.  Baltimore  &  O.  R.  Co.,  3  I.  C.  C.  465, 
2  I.  C.  R.  729.  Order  not  enforced  because  of  error  on  another 
point.  Int.  Com.  Com.  v.  B.  &  O.  R.  Co.,  43  Fed.  Z7,  3  I.  C.  R. 
192,  145  U.  S.  263,  36  L.  Ed.  699,  12  Sup.  Ct.  844.  Filing  of 
schedules  raises  no  presumption  as  to  the  legality  of  rates  set  out 
therein.  San  Bernardino  Board  of  Trade  v.  A.  T.  &  S.  F.  R. 
Co.,  4  I.  C.  C.  104,  3  I.  C.  R.  138.  Tariffs  on  imported  goods 
should  be  posted  at  the  port  of  entry  and  point  of  destination. 
New  York  Board  of  Trade  &  Transportation  v.  The  Penn.  R. 
Co.,  4  I.  C.  C.  447,  3  I.  C.  R.  417.  Order  enforced.  Int.  Com. 
Com.  V.  Tex.  Pac.  R.  Co.,  52  Fed.  187,  57  Fed.  948,  6  C.  C.  A. 
653,  20  U.  S.  App.  1,  4  I.  C.  R.  408.  Reversed  on  another  ground. 
Tex.  &  Pac.  R.  Co.  v.  Int.  Com.  Com.,  162  U.  S.  197,  40  L.  Ed. 
940,  16  Sup.  Ct.  666.  Must  post  rates  whether  commodity  ex- 
ported or  not.  New  Orleans  Cotton  Exp.  v.  Louisville,  N.  O.  & 
Tex.  R.  Co.,  4  I.  C.  C.  694,  3  I.  C.  R.  523.  A  joint  tariff 
must  show  on  its  face  what  roads  concur  therein.  Lehman- 
Higginson  &  Co.  v.  Tex.  Pac.  R.  Co.,  5  I.  C.  C.  44,  3  I.  C.  R. 
706.  Two  rates  on  the  same  commodity  should  not  be  re- 
tained in  the  tariff  when  the  lower  rate,  ostensibly  is  for  a 
particular  class,  though  actually  open  to  all.  Duncan  v.  A.  T.  & 
S.  F.  R.  Co.,  6  I.  C.  C.  85,  4  I.  C.  R.  385.  Section  and  its 
construction  discussed.  Re  Form  and  Contents  of  Rate  Sched- 
ules, 6  I.  C.  C.  267,  4  I.  C.  R.  698.  Mere  designation  in  a 
circular  of  means  of  arriving  at  a  rate  not  sufficient.  Colorado 
Fuel  &  Iron  Co.  v.  So.  Pac.  Co.,  6  I.  C.  C.  488,  518.  Order 
not  enforced.  So.  Pac.  Co.  v.  Colorado  F.  &  I.  Co.,  101  Fed. 
779,  42  C.  C.  A.  12.     To  use  a  corporation  owned  by  a  carrier 


522  Acts  Regulating  Commerce:,  [§  358. 

to  transport  freight  at  other  than  the  pubHshed  rate  violates 
section.  Re  Alleged  Unlawful  Rates  and  Practices,  7  I.  C.  C. 
ZZ.  Posting  notice  that  tariffs  may  be  obtained  from  agent 
not  sufficient.  Rea  v.  M.  &  O.  R.  Co.,  7  I.  C.  C.  43;  Johnson 
V.  Chicago,  St.  P.,  etc.,  R.  Co.,  9  I.  C.  C.  221,  237.  Rules 
and  regulations  affecting  aggregate  of  rates  must  be  shown  in 
tariff.  Suffern,  Hunt  &  Co.  v.  Indiana,  etc.,  R.  Co.,  7  I.  C.  C. 
255,  272,  278,  279;  American  Warehousemen's  Asso.  v.  111. 
Cent.  R.  Co.,  7  I.  C.  C.  556.  Section  construed  with  reference 
to  joint  rates.  New  York,  N.  H.  &  H.  v.  Piatt,  7  I.  C.  C. 
323,  331.  Consolidated  Forwarding  Co.  v.  So.  Pac.  Co.,  9  I. 
C.  C.  182.  Order  enforced.  Int.  Com.  Com.  v.  So.  Pac.  Co., 
132  Fed.  829.  Reversed.  So.  Pac.  Co.  v.  Int.  Com.  Com.,  200 
U.  S.  536,  50  L.  Ed.  585,  26  Sup.  Ct.  330.  Through  export  rates 
to  foreign  countries  need  not  be  shown,  it  is  sufficient  if  the  car- 
rier to  the  port  shows  its  proportion.  Kemble  v.  Boston  &  A. 
R.  Co.,  8  I.  C.  C.  110,  119.  But  where  the  through  rate  is 
made  by  joint  arrangement  between  the  rail  and  water  carrier 
it  must  be  published.  Re  Exports  and  Domestic  Rates  on  Grain, 
8  I.  C.  C.  214,  276.  Re  Tariffs  on  Export  and  Import  Traffic, 
10  I.  C.  C.  55,  63.  A  local  state  rate  part  of  a  through  rate 
must  be  published.  Re  Export  Rates  from  Points  East  and 
West  of  Mississippi  River,  8  I.  C.  C.  185,  213.  Rules  and  regu- 
lations relating  to  storage  should  be  stated.  Penn.  Millers  State 
Asso.  V.  Philadelphia  &  R.  R.  Co.,  8  I.  C.  C.  531,  560.  When 
rate  is  per  crate,  the  weight  or  dimensions  should  be  prescribed. 
Re  Alleged  Unlawful  Charges  for  Transportation  of  Vegetables, 
8  I.  C.  C.  585.  Rates  referring  to  regulations  of  and  charges 
for  private  cars  must  be  published.  Carr  v.  N.  Pac.  R.  Co.,  9 
I.  C.  C.  1,  15.  Tariff  should  show  division  to  tap  line  and 
privilege  of  milling  in  transit.  Central  Yellow  Pine  Asso.  v. 
Vicksburg,  etc.,  R.  Co.,  10  I.  C.  C.  193.  Charges  for  refrigera- 
tion must  be  shown.  Re  Charges  for  Transportation  and  Re- 
frigeration of  Fruit,  10  I.  C.  C.  360,  11  I.  C.  C.  129.  Sec- 
tion violated.  Re  Alleged  Unlawful  Rates  and  Practices  in 
Transportation  of  Coal,  10  I.  C.  C.  473,  484.  Tariffs  should 
be  simple  enough  to  be  understood  by  persons  of  ordinary  com- 
prehension. Pitts  V.  St.  L.  &  S.  F.  Ry.  Co.,  10  I.  C.  C.  684. 
Tariffs  can  not  be  given  a  retroactive  effect.  Re  Through  Routes 
and  Through  Rates,  12  I.  C.  C.  163.  Privilege  of  stopping  in 
traffic  to  sort,  etc.,  must  be  stated.     Shiel  &  Co.  v.  111.  Cent.  R. 


§  358.]  Annotated.  523 

Co.,  12  I.  C.  C.  210.  A  toll  charge  not  paid  should  not  be 
stated  in  tariff.  Pacific  Coast  Jobbers  &  Mfgrs.  Asso.  v.  So.  Pac. 
Co.,  12  I.  C.  C.  319.  Mistake  of  agent  in  stating  rate  will  not 
relieve  from  tariff  rates.  Poor  v.  Chicago,  B.  &  Q.  Ry.  Co., 
12  I.  C.  C.  418,  469,  citing  and  following  Texas  &  Pac.  R.  Co.  v. 
Mugg,  202  U.  S.  242,  50  L.  Ed.  1011,  26  Sup.-Ct.  628.  Gulf  C. 
&  S.  F.  R.  Co.  V.  Hefley,  158  U.  S.  98,  39  L.  Ed.  910,  15  Sup.  Ct. 
802.  See  recommendation  of  Int.  Com.  Com.  in  annual  report 
for  1908.  Carrier  making  delivery  at  its  cost  should  so  state 
in  tariff.  Schawager  &  Nettleton  v.  Great  N.  R.  Co.,  12  I.  C.  C. 
521.  Misleading,  unreasonable  or  impossible  conditions  should 
not  be  stated  in  tariffs.  Re  Released  Rates,  13  I.  C.  C.  556.  ^No 
allowance  not  specified  in  tariff's  can  be  allowed.  La  Salle,  etc., 
R.  Co.  V.  Chicago  &  N.  W.  R.  Co.,  13  I.  C.  C.  610.  Tariff  filed 
with  commission  binding  though  not  posted.  Pueblo  Transporta- 
tion Asso.  V.  So.  Pac.  Co.,  14  I.  C.  C.  82.  Allowance  made  to 
shippers  for  cost  of  car  door  boards  must  be  stated.  Victor  Fuel 
Co.  V.  A.  T.  &  S.  F.  R.  Co.,  14  I.  C.  C.  119.  So  must  reconsign- 
ment,  storage  and  all  other  privileges.  Folmer  &  Co.  v.  Great  N. 
Ry.  Co.,  15  I.  C.  C.  33,  36.  Transportation  by  a  railroad  of  em- 
ployees 'of  express  companies  engaged  along  the  line  of  the  rail- 
road need  not  sho\y  in  tariffs.  Re  Contracts  for  Free  Transpor- 
tation, 16  I.  C.  C.  246.  249.  Tariffs  are  to  be  construed  by  their 
language  and  not  by  traffic  officials.  Newton  Gum  Co.  v.  Chi- 
cago, B.  &  Q.  R.  Co.,  16  I.  C.  C.  341,  346.  Section  requires  the 
filing  of  schedules,  and  when  such  schedules  are  filed,  they  show 
the  only  legal  rates.  Kinnavey  v.  Terminal  R.  Asso.  of  St.  Louis, 
81  Fed.  802.  A  receiver  of  a  railroad  is  not  bound  by  a  tariff 
filed  before  his  appointment  and  which  he  has  not  ratified. 
United  States  v.  De  Coursey,  82  Fed.  302.  When  a  higher  rate 
is  charged  than  the  rate  given  the  shipper,  because  of  misrouting, 
the  shipper  can  recover  the  difference  between  the  rate  given  him 
and  the  one  he  was  compelled  to  pay.  Pond-Decker  Lumber  Co. 
V.  Spencer,  86  Fed.  846,  849,  30  C.  C.  A.  430,  reversing  81  Fed. 
277.  Section  discussed.  United  States  v.  Wood,  142  Fed.  405, 
408,  409.  The  purpose  of  publication  is  that  the  shipper  may 
know  not  only  what  he  but  also  what  his  competitor  must  pay. 
United  States  v.  Chicago  &  A.  R.  Co.,  148  Fed.  646,  648.  As- 
sumed, without  a  definite  discussion,  that  icing  charges  may  be 
stated  separately  in  schedules.  Knudsen-Ferguson  Fruit  Co.  v. 
Mich.  Cent.  R.  Co.,  148  Fed.  968,  971.     Shipment  of  goods  on 


524  Acts  Regulating  Commerce,  [§  358. 

through  hill  of  lading  from  United  States  to  a  foreign  country- 
subject  to  the  requirements  of  the  section.  Armour  Packing  Co. 
V.  United  States,  153  Fed.  1,  10,  82  C.  C.  A.  135,  14  L.  R.  A.  (N. 
S.)  400.  Affirmed.  209  U.  S.  56,  52  L.  Ed.  681,  28  Sup.  Ct.  428. 
Can  not  evade  section  when  tariffs  show  a  through  route  by 
transporting  prop'erty  over  another  route.  United  States  v. 
Vacuum  Oil  Co.,  153  Fed.  598.  A  provision  in  a  passenger 
ticket  not  shown  in  the  schedule  is  unlawful  and  void.  Balti- 
more &  O.  R.  Co.  V.  Hamburger,  155  Fed.  849.  When  a  schedule 
cf  rates  includes  a  charge  over  private  tracks,  such  charge  must 
be  collected.  Chicago  &  A.  Ry.  Co.  v.  United  States,  156  Fed. 
558,  84  C.  C.  A.  324,  affirming  148  Fed.  646.  So  also  with  ref- 
erence to  an  elevator  charge  and  no  defense  that  such  payment 
had  to  be  made  to  get  the  business.  Chicago,  St.  P.,  M.  &  O.  Ry. 
Co.  V.  United  States,  162  Fed.  835,  affirming  United  States  v. 
Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  151  Fed.  84.  The  legality  of  a 
terminal  charge  separately  stated  must  be  determined  by  itself 
and  without  reference  to  the  total  charge  for  the  through  move- 
ment. Stickney  v.  Int.  Com.  Com.,  164  Fed.  638.  Affirmed.  Int. 
Com.  Com.  V.  Stickney,  215  U.  S.  98,  54  L.  Ed.  112,  30  Sup.  Ct.  66. 
A  mistake  in  quoting  a  published  rate  does  not  justify  a  devia- 
tion therefrom.  Gulf,  Col.  &  S.  F.  Ry.  Co.  v.  Hefley,  158  U.  S.98, 
39  L.  Ed.  910,  15  Slip.  Ct.  802;  Texas  &  Pac.  Ry.  Co.  v.  Mugg, 
202  U.  S.  242,  50  L.  Ed.  1011,  26  Sup.  Ct.  628;  Texas  &  Pac.  Ry. 
Co.  V.  Abilene  Cotton  Oil  Co.,  204  U.  S.  426,  444,  51  L.  Ed.  553, 
560,  561,  27  Sup.  Ct.  350.  Free  cartage  furnished  openly  and  no- 
toriously for  a  quarter  of  a  century  need  not  be  stated  prior  to  act 
June  29,  1906,  in  absence  of  a  requirement  of  the  commission 
therefor.  Int.  Com.  Com.  v.  Detroit,  G.  H.  &  M.  Ry.  Co.,  167  U.  S. 
633,  42  L.  Ed.  306,  17  Sup.  Ct.  986.  May  under  this  section  make 
a  distinct  charge  for  the  terminal  road  when  separately  stated  in 
tariffs.  Int.  Com.  Com.  v.  Chicago,  B.  &  O.  R.  Co..^86  U.  S. 
320,  46  L.  Ed.  1182,  22  Sup.  Ct.  824.  Nothing  in  section  prevents 
the  initial  carrier  from  retaining  the  right  to  route  freight.  So. 
Pac.  Co.  V.  Int.  Com.  Com.,  200  U.  S.  536.  50  L.  Ed.  585^  26  Sup. 
Ct.  330.  Rates  are  established  when  filed  with  Interstate  Com- 
merce Commission  though  not  posted.  Tex.  &  Pac.  Ry.  Co.  v. 
Cisco  Oil  Mill,  204  U.  S.  449,  51  L.  Ed.  562,  27  Sup.  Ct.  358. 

Notes  of  Decisions  Rendered  Since  1909. 
The  purpose  of  this  section  is  to  secure  to  the  public  Knowl- 
edge of  the  rates  to  be  charged.     Schultz-Hansen  Co.  v.  S.  P. 


§  358.]  Annotated.  525 

Co.,  18  I.  C.  C.  234,  237.  Damages  awarded  for  failure  "plainly" 
to  state  tariff  application.  Larson  Lumber  Co.  v.  G.  N.  Ry.  Co., 
21  L  C.  C.  474.  Holding  itself  out  as  a  common  carrier  may  be 
assumed  to  be  such.  Interstate  Remedy  Co.  v.  Am.  Ex.  Co., 
16  L  C.  C.  436;  Crescent  Coal  &  Mining  Co.  v.  C.  &  E.  L  R.  R. 
Co.,  24  L  C.  C.  149,  156,  158.  Regulations  governing  baggage 
required  to  be  stated  since  amendment  to  Sec.  1  by  Act  June  18, 
1910.  Regulations  Restricting  the  Dimensions  of  Baggage,  26 
L  C.  C.  292.  Posting  not  a  condition  precedent  to  making  sched- 
ules operative.  Buren  v.  S.  P.  Co.,  26  L  C.  C.  332.  Texas 
&  Pacific  Ry.  Co.  v.  Cisco  Oil  Mill,  204  U.  S.  449,  51  L.  Ed. 
562,  27  Sup.  Ct.  358;  Kansas  City  So.  Ry.  Co.  v.  Albers  Com. 
Co.,  223  U.  S.  573,  594,  56  L.  Ed.  556,  —Sup.  Ct.  316;  United 
States  V.  Miller,  223  U.  S.  599,  56  L.  Ed.  568,  32  Sup.  Ct.  323. 
Commission's  power  to  modify  provisions  as  to  posting  stated. 
Franke  Grain  Co.  v.  I.  C.  R.  R.  Co.,  27  I.  C.  C.  625,  629,  modify- 
ing, Kiel  Woodenware  Co.  v.  C.  M.  &  St.  P.  Ry.  Co.,  18  L  C.  C. 
242.  "Integrity  of  through  rate"  defined  in  its  application  to 
Section.  Fabrication-in-Transit  Charges,  29  I.  C.  C.  70,  87.  A 
shipper  has  a  continued  right  in  rates  filed.  Am.  Sugar  Refin- 
ing Co.  V.  D.  L.  &  W.  R.  Co.,  207  Fed.  733,  125  C.  C.  A.  251, 
reversing  same  styled  case,  200  Fed.  652.  Failure  to  post  tarififs 
no  ground  for  recovery  of  damages.  111.  C.  R.  R.  Co.  v.  Hender- 
son Elevator  Co.,  226  U.  S.  441,  57  L.  Ed.  290,  33  Sup.  Ct.  176. 
Stock  Yards  Transit  Co.  must  file  tariflfs.  U.  S.  v.  Union  Stock 
Yard  &  Transit  Co.,  226  U.  S.  286,  57  L.  Ed.  226,  33  Sup.  Ct.  83 ; 
modifying  same  styled  case,  192  Fed.  330,  Op.  Com.  Ct.  No.  15  p. 
189.  Special  arrangement  for  transporting  men  employed  by 
Construction  Co.  legal.  Santa  Fe  P.  &  P.  R.  Co.  v.  Grant  Bros. 
Construction  Co.,  228  U.  S.  177,  57  L.  Ed.  787,  33  Sup.  Ct.  474; 
reversing  same  styled  case  13  Ariz.  186,  108  Pac.  467.  Elkins 
law  requires  tariff  to  be  observed.  Hocking  Valley  Ry.  Co.  v. 
United  States,  210  Fed.  735,  127  C.  C.  A.  285,  affirming  same 
styled  case  194  Fed.  234 ;  Sunday  Creek  Co.  v.  U.  S.-,  210  Fed. 
747.  Applies  to  demurrage  charges.  U.  S.  v.  Erie  R.  Co.,  209 
Fed.  283.  Expedited  service  illegal  when  privilege  not  shown  in 
tariff.  Englemon  v.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  210  Fed. 
896;  Chicago  &  A.  R.  Co.  v.  Kirby,  225  U.  S.  155,  56  L.  Ed. 
1033,  32  Sup.  Ct.  648.  "In  connection  with"  defined.  Kansas 
City,  So.  Ry.  Co.  v.  C.  H.  Albers  Commission  Co.,  223  U.  S. 
573,  56  L.  Ed.  556,  32  Sup.  Ct.  316.     Charges  must  be  paid  in 


526  Acts  Regulating  Commerce,  [§  359. 

monev.  Louisville  &  N.  R.  Co.  v.  Mottley,  219  U.  S.  467,  55  L. 
Ed.  297,  31  Sup.  Ct.  265,  34  L.  R.  A.  (N.  S.)  671;  Chicago  I. 
&  L.  R.  Co.  V.  United  States,  219  U.  S.  486,  55  L.  Ed.  305,  31 
vSup.  Ct.  272.  See  notes  31  L.  R.  A.  (N.  S.)  657,  38  L.  R.  A. 
(N.  S.)  2)57,  55  L.  Ed.,  U.  S.  305.  Separate  statement  of 
terminal  charges.  Int.  Com.  Com.  v.  Stickney,  215  U.  S.  98,  54 
L.  Ed.  112,  30  Sup.  Ct.  66. 

Limitation  of  value  in  the  tariff  controls.  Boston  &  M.  R.  Co. 
V.  Hooker,  233  U.  S.  97,  58  L.  Ed.  868,  34  Sup.  Ct.  526.  Purpose 
of  Section  discussed.  Hamlen  &  Sons  Co.  v.  111.  C.  R.  Co.,  212 
Fed.  324,  citing  Clegg  v.  St.  L.  &  S.  F.  R.  Co.,  203  Fed.  971,  122 
Cleveland  C.  C.  A.  273 ;  C.  C.  &  St.  L.  R.  R.  Co.  v.  Hirsch,  204 
Fed.  849,  123  C.  C.  A.  145,  to  the  eft'ect  that  any  contract  impos- 
ing a  more  burdensome  liability  than  that  stated  in  the  tariffs  is 
void.  Points  from  and  to  which  rates  apply  must  be  stated. 
Rates  on  Slag.  34  I.  C.  C.  2,Z7. 

§  359.  Reg-ulations  as  to  Printing-  and  Posting-  Sched- 
ules of  Rates  for  Freight  Moving  through  Foreign  Coun- 
tries from  and  to  Any  Place  in  the  United  States. — Any 
common  carrier  subject  to  the  provisions  of  this  act  receiving 
freight  in  the  United  States  to  be  carried  through  a  foreign  coun- 
try to  any  place  in  the  United  States  shall  also  in  like  manner 
print  and  keep  open  to  public  inspection,  at  every  depot  or  office 
where  such  freight  is  received  for  shipment,  schedules  showing 
the  through  raties  established  and  charged  by  such  common  car- 
rier to  all  points  in  the  United  States  beyond  the  foreign  coun- 
try to  which  it  accepts  freight  for  shipment ;  and  any  freight 
shipped  from  the  United  States  through  a  foreign  country  into 
the  United  States  the  through  rate  on  which  shall  not  have  been 
made  public,  as  required  by  this  act,  shall,  before  it  is  admitted 
into  the  United  States  from  said  foreign  country,  be  subject  to 
customs  duties  as  if  said  freight  were  of  foreign  production. 

Paragraph  two  of  section  six.  Paragraph  as  originally  en- 
acted.    For  annotations  see  next  preceding  section. 

Posting  for  public  inspection  is  not  essential  to  make  effective 
tariff  duly  filed  with  the  Commission.  Berwind- White  Coal 
Mining  Co.  v.  C.  &  E.  R.  Co.,  235  U.  S.  371,  59  L.  Ed.  — ,  35 
Sup.  Ct.  131.  Tariffs  relating  to  import  traffic.  United  States  v. 
Grand  T.  R.  Co.,  225  Fed.  283. 

§  360.  No  Change  of  Schedules  of  Rates  Shall  be  Made 
without  Notice. — No  change  shall  be  made  in  the  rates,  fares. 


§  361.]  Annotated.  527 

and  charges,  or  joint  rates,  fares,  and  charges,  which  have  been 
filed  and  published  by  any  common  carrier  in  compliance  with 
the  requirements  of  this  section,  except  after  thirty  days'  notice 
to  the  Commission  and  to  the  public  published  as  aforesaid, 
which  shall  plainly  state  the  changes  proposed  to  be  made  in  the 
schedule  then  in  force  and  the  time  when  the  changed  rates,  fares, 
or  charges  will  go  into  efifect ;  and  the  proposed  changes  shall  be 
shown  by  printing  new  schedules,  or  shall  be  plainly  indicated 
upon  the  schedules  in  force  at  the  time  and  kept  open  to  public 
inspection :  Provided,  That  the  Commission  may,  in  its  discre- 
tion and  for  good  cause  shown,  allow  changes  upon  less  than 
the  notice  herein  specified,  or  modify  the  requirements  of  this 
section  in  respect  to  publishing,  posting  and  filing  tariffs,  either 
in  particular  instances  or  by  a  general  order  applicable  to  spe- 
cial or  peculiar  circumstances  or  conditions. 

Paragraph  three  of  section  six  as  amended  by  act  June  29, 
1906.    For  the  original  act  of  March  2,  1889  see  post,  §  519. 

For  administrative  rulings,  see  tariff  circulars  18-A.  Time 
to  be  computed  from  day  that  notice  reaches  the  office  of  Com- 
mission. Circular  March  23,  1889,  2  I.  C.  C.  656.  Export  rates 
can  not  be  varied  from  day  to  day  to  meet  fluctuation.  New 
York  Produce  Ex.  v.  New  York  C.  &  H.  R.  R.  Co.,  3  I.  C.  C. 
137,  2  I.  C.  R.  553. 

Notes  of  Decisions  Rendered  Since  1909. 

Section  stated  as  to  power  of  the  Commission  to  modify  the 
requirements.  Franke  Grain  Co.  v.  I.  C.  R.,  27  I.  C.  C.  625, 
629. 

§  361.  Names  of  All  Carriers  Parties  to  Schedules  Must 
Be  Specified. — The  names  of  the  several  carriers  which  are  par- 
ties to  any  joint  tariff  shall  be  specified  therein,  and  each  of  the 
parties  thereto,  other  than  the  one  filing  the  same,  shall  file  with 
the  Commission  such  evidence  of  concurrence  therein  or  accept- 
ance thereof  as  may  be  required  or  approved  by  the  Commission, 
and  \vhere  such  evidence  of  concurrence  or  acceptance  is  filed  it 
shall  not  be  necessary  for  the  carriers  filing  the  same  to  also 
file  copies  of  the  tariffs  in  which  they  are  named  as  parties. 

New  paragraph  of  section  six  added  by  act  June  29,  1906. 

Evidence  of  an  agreement  to  a  joint  tariff  should  be  a  matter 
of  record.  Re  Form  and  Contents  of  Rate  Schedules.  6  I.  C.  C. 
267,  279,  4  I.  C.  R.  698,  702.     Joint  rate  can  only  be  made  by 


528  Acts  Regulating  Commerce;,  [§  362. 

concurrence  or  assent.  New  York,  N.  H.  &  H.  R.  Co.  v.  Piatt, 
7  I.  C.  C.  323,  ?>7>Z. 

§  oC-'l.  Carriers  Shall  File  Contracts  Relating  to  Traffic 
Arrangements. — Every  common  carrier  subject  to  this  act  shall 
also  file  with  said  Commission  copies  of  all  contracts,  agreements, 
or  arrangements  with  other  common  carriers  in  relation  to  any 
traffic  .affected  by  the  provisions  of  this  act  to  which  it  may  be 
a  party. 

Paragraph  five  of  section  six  substantially  as  in  original  act, 
the  words  "subject  to  this  act"  being  added  by  act  June  29, 
1906. 

Contracts  and  agreements  for  joint  rates  must  be  filed.  Tariff 
circular  18-A.  So  must  carriers'  contracts  for  telephone  and 
telegraph  service.  Id.  Express  companies  must  file  contracts 
for  joint  rates. 

§  363.  Commission  May  Prescribe  Form  of  Schedules. — 
The  Commission  may  determine  and  prescribe  the  form  in  which 
the  schedules  required  by  this  section  to  be  kept  open  to  public 
inspection  shall  be  prepared  and  arranged  and  may  change  the 
form  from  time  to  time  as  shall  be  found  expedient. 

Paragraph  six,  section  six,  of  present  act,  added  March  2, 
1889. 

Tariff  schedule  18-A  is  issued  by  the  Interstate  Commerce 
Commission  under  authority  of  this  paragraph.  Charges  should 
be  clearly  and  definitely  stated  so  that  the  public  can  easily  de- 
termine the  rate.  Colorado  Fuel  and  Iron  Co.  v.  So.  Pac.  Co., 
6  I.  C.  C.  488,  518. 

§  364.  No  Carrier  Shall  Participate  in  Interstate  Com- 
merce Unless  the  Charges  Therefor  Are  Published,  and  No 
Such  Carrier  Shall  Deviate  from  the  Published  Schedules. 
— No  carrier,  unless  otherwise  provided  by  this  act,  shall  engage 
or  participate  in  the  transportation  of  passengers  or  property,  as 
defined  in  this  act,  unless  the  rates,  fares,  and  charges  upon  which 
the  same  are  transported  by  said  carrier  have  been  filed  and  pub- 
lished in  accordance  with  the  provisions  of  this  act ;  nor  shall  any 
carrier  charge  or  demand  or  collect  or  receive  a  greater  or  less 
or  dift'erent  compensation  for  such  transportation  of  passengers 
or  property,  or  for  any  service  in  connection  therewith,  between 
the  points  named  in  such  tariffs  than  the  rates,  fares,  and  charges 
which  are  specified  in  the  tariff  filed  and  in  effect  at  the  time; 
nor  shall  any  carrier  refund  or  remit  in  any  manner  or  by  any 


§  364.]  Annotated.  529 

device  any  portion  of  the  rates,  fares,  and  charges  so  specified, 
nor  extend  to  any  shipper  or  person  any  privileges  or  facilities 
in  the  transportation  of  passengers  or  property,  except  such  as 
are  specified  in  such  tariffs :  Provided,  That  wherever  the  w^ord 
"carrier"  occurs  in  this  act  it  shall  be  held  to  mean  "common 
carrier." 

Paragraph  seven  of  section  six,  being  amended  by  acts  of  June 
29,  1906  and  March  2,  1889. 

Section  six  of  the  original  act  read: 

"That  every  common  carrier  subject  to  the  provisions  of  this 
act  shall  print  and  keep  for  public  inspection  schedules  show- 
ing the  rates  and  fares  and  charges  for  the  transportation  of 
passengers  and  property  which  any  such  common  carrier  has 
established  and  which  are  in  force  at  the  time  upon  its  railroad, 
as  defined  by  the  first  section  of  this  act.  The  schedules  printed 
as  aforesaid  by  any  such  common  carrier  shall  plainly  state  the 
places  upon  its  railroad  between  which  property  and  passengers 
will  be  carried  and  shall  contain  the  classification  of  freight  in 
force  upon  such  railroad,  and  shall  also  state  separately  the  ter- 
minal charges  and  any  rules  or  regulations  which  in  any  wise 
change,  effect  or  determine  any  part  or  the  aggregate  of  such 
aforesaid  rates  and  fares  and  charges.  Such  schedules  shall  be 
plainly  printed  in  large  type,  of  at  least  the  size  of  ordinary 
pica,  and  copies  for  the  use  of  the  public  shall  be  kept  in  every 
depot  or  station  upon  any  such  railroad,  in  such  places  and  in 
such  form  that  they  can  be  conveniently  inspected. 

"Any  common  carrier  subject  to  the  provisions  of  this  act  re- 
ceiving freight  in  the  United  States  to  be  carried  through  a  for- 
eign country  to  any  place  in  the  United  States  shall  also  in  like 
manner  print  and  keep  for  public  inspection,  at  every  depot 
where  such  freight  is  received  for  shipment,  schedules  showing 
the  through  rates  established  and  charged  by  such  common  car- 
rier to  all  points  in  the  United  States  beyond  the  foreign  coun- 
try to  which  it  accepts  freight  for  shipment;  and  any  freight 
shipped  from  the  United  States  through  a  foreign  country  into 
the  United  States,  the  through  rate  on  which  shall  not  have 
been  made  public  as  required  by  this  act,  shall,  before  it  is  ad- 
mitted into  the  United  States  from  said  foreign  country,  be  sub- 
ject to  customs  duties  as  if  said  freight  were  of  foreign  pro- 
duction ;  and  any  law  in  conflict  with  this  section  is  hereby  re- 
pealed. 


530  Acts  Regulating  Commerce,  [§  364. 

"No  advance  shall  be  made  in  the  rates,  fares  and  charges 
which  have  been  established  and  published  as  aforesaid  by  any 
common  carrier  in  compliance  with  the  requirements  of  this 
section,  except  after  ten  days'  public  notice,  which  shall  plainly 
state  the  changes  proposed  to  be  made  in  the  schedule  then  in 
force,  and  the  time  when  the  increased  rates,  fares,  or  charges 
will  go  into  effect;  and  the  proposed  changes  shall  be  shown  by 
printing  new  schedules,  or  shall  be  plainly  indicated  upon  the 
schedules  in  force  at  the  time  and  kept  for  public  inspection. 
Reductions  in  such  published  rates,  fares,  or  charges  may  be 
made  without  previous  notice;  but  whenever  any  such  reduc- 
tion is  made,  notice  of  the  same  shall  immediately  be  publicly 
posted  and  the  changes  made  shall  immediately  be  plainly  in- 
dicated upon  the  schedules  at  the  time  in  force  and  kept  for  pub- 
lic inspection. 

"And  when  any  such  common  carrier  shall  have  established 
and  published  its  rates,  fares,  and  charges  in  compliance  with 
the  provisions  of  this  section,  it  shall  be  unlawful  for  such  com- 
mon carrier  to  charge,  demand,  collect,  or  receive  from  any  per- 
son or  persons  a  greater  or  less  compensation  for  the  transporta- 
tion of  passengers  or  property,  or  for  any  service  in  connection 
therewith,  than  is  specified  in  such  published  schedule  of  rates, 
fares,  and  charges  as  may  at  the  time  be  in  force. 

"Every  common  carrier  subject  to  the  provisions  of  this  act 
shall  file  with  the  Commission  hereinafter  provided  for  copies  of 
its  schedules  of  rates,  fares,  and  charges  which  have  been  es- 
tablished and  published  in  compliance  with  the  requirements  of 
this  section,  and  shall  promptly  notify  said  Commission  of  all 
changes  made  in  the  same.  Every  such  common  carrier  shall 
also  file  with  said  Commission  copies  of  all  contracts,  agreements, 
or  arrangements  with  other  common  carriers  in  relation  to  any 
traffic  affected  by  the  provisions  of  this  act  to  which  it  may  be 
a  party.  And  in  cases  where  passengers  and  freight  pass  over 
continuous  lines  or  routes  operated  by  more  than  one  common 
carrier,  and  the  several  common  carriers  operating  such  lines 
or  routes  establish  joint  tariffs  of  rates  or  fares  or  charges  for 
such  continuous  lines  or  routes,  copies  of  such  joint  tariff's  shall 
also,  in  like  manner,  be  filed  with  said  Commission.  Such  joint 
rates,  fares,  and  charges  on  such  continuous  lines  so  filed  as 
aforesaid  shall  be  made  public  by  such  common  carriers  when 
directed  by  said  Commission,  in  so  far  as  may,  in  the  judgment 


§  364.]  Annotated.  531 

of  the  Commission,  be  deemed  practicable ;  and  said  Commission 
shall  from  time  to  time  prescribe  the  measure  of  publicity  which 
shall  be  given  to  such  rates,  fares,  and  charges,  or  to  such  part 
of  them  as  it  may  deem  practicable  for  such  common  carriers  to 
publish,  and  the  places  in  which  they  shall  be  published ;  but  no 
common  carrier  party  to  any  such  joint  tariff  shall  be  liable  for 
the  failure  of  any  other  common  carrier  party  thereto  to  observe 
and  adhere  to  the  rates,  fares,  or  charges  thus  made  and  pub- 
lished. 

"If  any  such  common  carrier  shall  neglect  or  refuse  to  file  or 
publish  its  schedules  or  tariffs  of  rates,  fares,  and  charges  as 
provided  in  this  section,  or  any  part  of  the  same,  such  common 
carrier  shall,  in  addition  to  other  penalties  herein  prescribed,  be 
subject  to  a  writ  of  mandamus,  to  be  issued  by  any  circuit  court 
of  the  United  States  in  the  judicial  district  wherein  the  prin- 
cipal ofifice  of  said  common  carrier  is  situated*  or  wherein  such 
offense  may  be  committed,  and  if  such  common  carrier  be  a  for- 
eign corporation,  in  the  judicial  circuit  wherein  such  common 
carrier  accepts  traffic  and  has  an  agent  to  perform  such  service, 
to  compel  compliance  with  the  aforesaid  provisions  of  this  sec- 
tion ;  and  such  writ  shall  issue  in  the  name  of  the  people  of  the 
United  States,  at  the  relation  of  the  commissioners  appointed 
under  the  provisions  of  this  act;  and  failure  to  comply  with  its 
requirements  shall  be  punishable  as  and  for  a  contempt;  and 
the  said  commissioners,  as  complainants,  may  also  apply,  in  any 
such  circuit  court  of  the  United  States,  for  a  writ  of  injunction 
against  such  common  carrier,  to  restrain  such  common  carrier 
from  receiving  or  transporting  property  among  the  several  states 
and  territories  of  the  United  States,  or  between  the  United 
States  and  adjacent  foreign  countries,  or  between  ports  of  trans- 
shipment and  of  entry  and  the  several  states  and  territories  of 
the  United  States,  as  mentioned  in  the  first  section  of  this  act, 
until  such  common  carrier  shall  have  complied  with  the  afore- 
said provisions  of  this  section  of  this  act." 

Section  six  of  the  act  of  March  2,  1889,  read: 

"That  every  common  carrier  subject  to  the  provisions  of  this 
act  shall  print  and  keep  open  to  public  inspection  schedules 
showing  the  rates  and  fares  and  charges  for  the  transportation  of 
passengers  and  property  which  any  common  carrier  has  estab- 
lished and  which  are  in  force  at  the  time  upon  its  route.  The 
schedules  printed  as  aforesaid  by  any  such  common  carrier  shall 


532  Acts  Regulating  Commerce,  [§  364. 

plainly  state  the  places  upon  its  railroad  between  which  prop- 
erty and  passengers  will  be  carried,  and  shall  contain  the  classi- 
fication of  freight  in  force,  and  shall  also  state  separately  the 
terminal  charges  and  any  rules  or  regulations  which  in  any  wise 
change,  afifect,  or  determine  any  part  or  the  aggregate  of  such 
aforesaid  rates  and  fares  and  charges.  Such  schedules  shall  be 
plainly  printed  in  large  type,  and  copies  for  the  use  of  the  pub- 
lic shall  be  posted  in  two  public  and  conspicuous  places,  in  every 
depot,  station,  or  office  of  such  carrier  where  passengers  or 
freight,  respectively,  are  received  for  transportation,  in  such 
form  that  they  shall  be  accessible  to  the  public  and  can  be  con- 
veniently inspected. 

"Any  common  carrier  subject  to  the  provisions  of  this  act  re- 
ceiving freight  in  the  United  States  to  be  carried  through  a  for- 
eign country  to  any  place  in  the  United  States  shall  also  in  like 
manner  print  and  keep  open  to  public  inspection,  at  every  de- 
pot or  office  where  such  freight  is  received  for  shipment,  sched- 
ules showing  the  through  rates  established  and  charged  by  such 
common  carrier  to  all  points  in  the  United  States  beyond  the 
foreign  country  to  which  it  accepts  freight  for  shipment;  and 
any  freight  shipped  from  the  United  States  through  a  foreign 
country  into  the  United  States,  the  through  rate  on  which  shall 
not  have  been  made  public  as  required  by  this  act,  shall,  before 
it  is  admitted  into  the  United  States  from  said  foreign  country, 
be  subject  to  customs  duties  as  if  said  freight  were  of  foreign 
production ;  and  any  law  in  conflict  with  this  section  is  hereby 
repealed : 

"No  advance  shall  be  made  in  the  rates,  fares,  and  charges 
which  have  been  established  and  published  as  aforesaid  by  any 
common  carrier  in  compliance  with  the  requirements  of  this 
section,  except  after  ten  days'  public  notice,  which  shall  plainly 
state  the  changes  proposed  to  be  made  in  the  schedule  then  in 
force,  and  the  time  when  the  increased  rates,  fares,  or  charges 
will  go  into  effect ;  and  the  proposed  changes  shall  be  shown  by 
printing  new  schedules,  or  shall  be  plainly  indicated  upon  the 
schedules  in  force  at  the  time  and  kept  open  to  public  inspection. 
Reductions  in  such  published  rates,  fares  or  charges  shall  only 
be  made  after  three  days'  previous  public  notice,  to  be  given 
in  the  same  manner  that  notice  of  an  advance  in  rates  must  be 
given. 

"And  when  any  such  common  carrier  shall  have  established 


§  364.]  Annotated.  533 

and  published  its  rates,  fares,  and  charges  in  compliance  with 
the  provisions  of  this  section,  it  shall  he  unlawful  for  such  com- 
mon carrier  to  charge,  demand,  or  receive  from  any  person  or 
persons  a  greater  or  less  compensation  for  the  transportation  of 
passengers  or  property,  or  for  any  services  in  connection  there- 
with, than  is  specified  in  such  published  schedule  of  rates,  fares, 
and  charges  as  may  at  the  time  be  in  force. 

"Every  common  carrier  subject  to  the  provisions  of  this  act 
shall  file  with  the  Commission  hereinafter  provided  for  copies 
of  its  schedules  of  rates,  fares,  and  charges  which  have  been 
established  and  published  in  compliance  with  the  requirements 
of  this  section,  and  shall  promptly  notify  said  Commission  of  all 
changes  made  in  the  same.  Every  such  common  carrier  shall 
also  file  with  said  Commission  copies  of  all  contracts,  agreements, 
or  arrangements  with  other  common  carriers  in  relation  to  any 
traffic  affected  by  the  provisions  of  this  act  to  which  it  may  be 
a  party.  And  in  cases  where  passengers  and  freight  pass  over 
continuous  lines  or  routes  operated  by  more  than  one  common 
carrier,  and  the  several  common  carriers  operating  such  lines  or 
routes  establish  joint  tariffs  of  rates  or  fares  or  charges  for  such 
continuous  lines  or  routes,  copies  of  such  joint  tariff's  shall  also, 
in  like  manner,  be  filed  with  said  Commission.  Such  joint  rates, 
fares,  and  charges  on  such  continuous  lines  so  filed  as  aforesaid 
shall  be  made  public  by  such  common  carriers  when  directed  by 
said  Commission,  in  so  far  as  may,  in  the  judgment  of  the  Com- 
mission, be  deemed  practicable;  and  said  Commission  shall  from 
time  to  time  prescribe  the  measure  of  publicity  which  shall  be 
given  to  such  rates,  fares,  and  charges,  or  to  such  part  of  them 
as  it  may  deem  practicable  for  such  common  carrier  to  publish, 
and  the  places  in  which  they  shall  be  published. 

"No  advance  shall  be  made  in  joint  rates,  fares,  and  charges, 
shown  upon  joint  tariffs,  except  after  ten  days'  notice  to  the 
Commission,  which  shall  plainly  state  the  changes  proposed  to 
be  made  in  the  schedules  then  in  force,  and  the  time  when  the 
increased  rates,  fares,  or  charges  will  go  into  effect.  No  reduc- 
tion shall  be  made  in  joint  rates,  fares,  and  charges,  except  after 
three  days'  notice,  to  be  given  to  the  Commission  as  is  above 
provided  in  the  case  of  an  advance  of  joint  rates.  The  Com- 
mission may  make  public  such  proposed  advances,  or  such  re- 
ductions, in  such  manner  as  may,  in  its  judgment,  be  deemed 
practical,  and  may  prescribe  from  time  to  time  the  measure  of 


534  Acts  Regulating  Commerce,  [§  364. 

publicity  which  common   carriers   shall  give  to  advances  or  re- 
ductions in  joint  tariffs. 

"It  shall  be  unlawful  for  any  common  carrier,  party  to  any 
joint  tariff,  to  charge,  demand,  collect,  or  receive  from  any  per- 
son or  persons  a  greater  or  less  compensation  for  the  transpor- 
tation of  persons  or  property,  or  for  any  services  in  connection 
therewith,  between  any  points  as  to  which  a  joint  rate,  fare,  or 
charge  is  named  thereon,  than  is  specified  in  the  schedule  filed 
with  the  Commission  in  force  at  the  time. 

"The  Commission  may  determine  and  prescribe  the  fonn  in 
which  the  schedules  required  by  this  section  to  be  kept  open  to 
public  inspection  shall  be  prepared  and  arranged,  and  may  change 
the  form  from  time  to  time  as  shall  be  found  expedient. 

"If  any  such  common  carrier  shall  neglect  or  refuse  to  file 
or  publish  its  schedules  or  tariffs  of  rates,  fares,  and  charges 
as  provided- in  this  section,  or  any  part  of  the  same,  such  com- 
mon carrier  shall,  in  addition  to  other  penalties  herein  prescribed, 
be  subject  to  a  writ  of  mandamus,  to  be  issued  by  any  circuit 
court  of  the  United  States  in  the  judicial  district  wherein  the 
principal  office  of  said  common  carrier  is  situated,  or  wherein 
such  offense  may  be  committed,  and  if  such  common  carrier  be  a 
foreign  corporation  in  the  judicial  circuit  wherein  such  common 
carrier  accepts  traffic  and  has  an  agent  to  perform  such  service, 
to  compel  compliance  with  the  aforesaid  provisions  of  this  sec- 
tion; and  such  writ  shall  issue  in  the  name  of  the  people  of 
the  United  States,  at  the  relation  of  the  commissioners  appointed 
under  the  provisions  of  this  act;  and  the  failure  to  comply  wath 
its  requirements  shall  be  punishable  as  and  for  a  contempt ;  and 
the  said  commissioners,  as  complainants,  may  also  apply,  in  any 
such  circuit  court  of  the  United  States,  for  a  writ  of  injunction 
against  such  common  carrier,  to  restrain  such  common  carrier 
from  receiving  or  transporting  property  among  the  several 
states  and  territories  of  the  United  States,  or  between  the  United 
States  and  adjacent  foreign  countries,  or  between  ports  of  trans- 
shipment and  of  entry  and  the  several  states  and  territories  of 
the  United  States,  as  mentioned  in  the  first  section  of  this  act, 
until  such  common  carrier  shall  have  complied  with  the  aforesaid 
provisions  of  this  section  of  this  act." 

See  annotations,  supra,  under  other  paragraphs  of  section  six 
of  the  x^ct  to  Regulate  Commerce. 

Reductions  in  passenger  rates  should  not  be  made  w'ithout  a 


§  365.]  Annotated.  535 

change  showing  such  reductions  in  the  tariffs.  Re  Passenger 
Tariffs  and  Rate  Wars,  2  I.  C.  C.  513,  2  I.  C.  R.  340.  When 
no  joint  rates  are  pubhshed,  the  combination  of  the  locals  is  the 
legal  rate.  Re  Passenger  Tariffs,  2  I.  C.  C.  649,  2  I.  C.  R. 
445;  Lehman,  Higginson  &  Co.  v.  Tex.  &  Pac.  R.  Co.,  5  I.  C. 
C.  44,  3  I.  C.  R.  706.  A  carrier  must  collect  its  local  rate 
unless  it  has  joined  in  a  joint  tariff.  New  York,  N.  H.  &  H.  R. 
Co.  V.  Piatt,  7  I.  C.  C.  323.  All  rules  and  regulations  affect- 
ing rates  should  show  on  the  tariffs.  Spillers  &  Co.  v.  L.  & 
N.  R.  Co.,  8  I.  C.  C.  364.  Tariffs  can  not  be  given  a  retro- 
active effect.  Re  Through  Routes  and  Through  Rates,  12  I.  C. 
C.  163.  Mistake  of  agent  in  giving  rate  will  not  justify 
deviation  from  tariff  rate.  Poor  Grain  Co.  v.  C,  B.  &  Q.  Ry. 
Co.,  12  I.  C.  C.  418,  421  and  469,  citing  Gulf,  C.  &  S.  F.  Ry. 
Co.  V.  Hefley,  158  U.  S.  98,  39  L.  Ed.  910,  15  Sup.  Ct.  802;  Tex. 
&  Pac.  Ry.  Co.  v.  Mugg,  202  U.  S.  242,  50  L.  Ed.  1011,  26  Sup. 
Ct.  628.  The  through  rate  shown  by  the  tariff  is  the  lawful  rate 
for  a  through  shipment,  although  the  combination  of  locals  is 
less.  Morgan  v.  M.  K.  &  T.  Ry.  Co.,  12  I.  C.  C.  525.  Section 
construed  and  statement  made  of  what  an  indictment  for  its  vio- 
lation should  contain.  United  States  v.  Penn.  R.  Co.,  153 
Fed.  625;  United  States  v.  New  York  C.  &  H.  R.  R.  Co.,  153 
Fed.  630.  Act  not  unconstitutional  because  published  rate  fixed 
as  legal  rate.  United  States  v.  Standard  Oil  Co.,  of  Indiana, 
155  Fed.  305.  Reversed  on  other  grounds.  Standard  Oil  Co.  of 
Indiana  v.  United  States,  164  Fed.  376;  see  also  United  States 
V.  Vacuum  Oil  Co.,  158  Fed.  536. 

Notes  of  Decisions  Rendered  Since  1909. 

A  published  rate  is  the  legal  rate,  although  it  may  not  be  law- 
ful. See  distinction.  Arkansas  Fuel  Co.  v.  C.  M.  &  St.  P.  Ry. 
Co.,  16  I.  C.  C.  95,  97.  A  rate  is  the  legal  rate  even  though  not 
"posted."  U.  S.  V,  Miller,  223  U.  S.  599,  56  L.  Ed.  568,  32  Sup. 
Ct.  323,  reversing^  U.  S.  v.  Miller,  187  Fed.  369  and  375. 

§  365.  Preference  and  Precedence  May  Be  Given  Mili- 
tary Traffic  in  Time  of  War. — That  in  time  of  war  or  threat- 
ened war  preference  and  precedence  shall,  upon  the  demand  of 
the  President  of  the  United  States,  be  given,  over  all  other 
traffic,  to  the  transportation  of  troops  and  material  of  war,  and 
carriers  shall  adopt  every  means  within  their  control  to  facilitate 
and  expedite  the  military  traffic. 


536  Acts  Regulating  Commerce,  [§  366. 

A  new  paragraph,  paragraph  eight,  added  to  section  six  by 
Act  June  29,  1906. 

§  366.  The  Commission  May  Reject  Schedules. — The 
Commission  may  reject  and  refuse  to  file  any  schedule  that  is 
tendered  for  fihng  which  does  not  provide  and  give  lawful  notice 
of  its  efifective  date,  and  any  schedule  so  rejected  by  the  Com- 
mission shall  be  void  and  its  use  shall  be  unlawful. 

A  new  proA'ision  added  to  Sec   6  by  act  of  June  18,  1910. 

§  367.  Penalty  for  Failure  to  Comply  with  Orders  Under 
Section  Six. — In  case  of  failure  or  refusal  on  .the  part  of  any 
carrier,  receiver,  or  trustee  to  comply  with  the  terms  of  any 
regulation  adopted  and  promulgated  or  any  order  made  by  the 
Commission  under  the  provisions  of  this  section,  such  carrier, 
receiver,  or  trustee  shall  be  liable  to  a  penalty  of  five  hundred 
dollars  for  each  such  offense,  and  twenty-five  dollars  for  each 
and  every  day  of  the  continuance  of  such  offense,  which  shall 
accrue  to  the  United  States  and  may  be  recovered  in  a  civil  action 
brought  by  the  United  States. 

A  new  provision  added  to  Sec.  6  by  Act  of  June  18,  1910. 

§  368.  Penalty  for  Misstating-  or  Failure  to  State  Rate. 
— If  any  common  carrier  subject  to  the  provisions  of  this  act, 
after  written  request  made  upon  the  agent  of  such  carrier  here- 
inafter in  this  section  referred  to,  by  any  person  or  company  for 
a  written  statement  of  the  rate  or  charge  applicable  to  a  de- 
scribed shipment  between  stated  places  under  the  schedules  or 
tariffs  to  which  such  carrier  is  a  party,  shall  refuse  or  omit  to 
give  such  written  statement  within  a  reasonable  time,  or  shall 
misstate  in  writing  the  applicable  rate,  and  if  the  person  or  com- 
pany making  such  request  sufifers  damage  in  consequence  of  such 
refusal  or  omission  or  in  consequence  of  the  misstatement  of  the 
rate,  either  through  making  the  shipment  over  a  line,  or  route 
for  which  the  proper  rate  is  higher  than  the  rate  over  another 
available  line  or  route,  or  through  entering  into  any  sale  or  other 
contract  whereunder  svich  person  or  company  obligates  himself 
or  itself  to  make  such  shipment  of  freight  at  his  or  its  coSt,  then 
the 'said  carrier  shall  be  liable  to  a  penalty  of  two  hundred  and 
fifty  dollars,  which  shall  accrue  to  the  United  States  and  may 
be  recovered  in  a  civil  action  brought  by  the  United  States. 

A  new  provision  added  by  Act  June  18,  1910. 

§  369.  Must  Post  Name  of  Agent.—  It  shall  be  the  duty  of 
every  carrier  by  railroad  to  keep  at  all  times  conspicuously  posted 


§  370.]  Annotated.  537 

in  every  station  where  freight  is  received  for  transportation  the 
name  of  an  agent  resident  in  the  city,  village,  or  town  where  such 
station  is  located,  to  whom  application  may  be  made  for  the  in- 
formation by  this  section  required  to  be  furnished  on  written  re- 
quest ;  and  in  case  any  carrier  shall  fail  at  any  time  to  have  such 
name  so  posted  in  any  station,  it  shall  be  sufficient  to  address  such 
request  in  substantially  the  following  form :     "The  Station  Agent 

of  the Company  at  Station,"  together  with  the 

name  of  the  proper  post  office,  inserting  the  name  of  the  carrier 
company  and  of  the  station  in  the  blanks,  and  to  serve  the  same 
by  depositing  the  request  so  addressed,  with  postage  thereon  pre- 
paid, in  any  post  office. 

A  new  provision  added  to  Section  6  by  Act  June  18,  1910. 

§  370.  Corporations  Violating  the  Act  to  Regulate  Com- 
merce Guilty  as  Individuals  and  Punishment  Prescribed. 
— That  anything  done  or  omitted  to  be  done  by  a  corporation 
common  carrier,  subject  to  the  act  to  regulate  commerce  and  the 
acts  amendatory  thereof,  which,  if  done  or  omitted  to  be  done  by 
any  director  or  officer  thereof,  or  any  receiver,  trustee,  lessee, 
agent,  or  person  acting  for  or  employed  by  such  corporation, 
would  constitute  a  misdemeanor  under  said  acts  or  under  this 
act,  shall  also  be  held  to  be  a  misdemeanor  committed  by  such 
corporation,  and  upon  conviction  thereof  it  shall  be  subject  to 
like  penalties  as  are  prescribed  in  said  acts  or  by  this  act  with 
reference  to  such  persons,  except  as  such  penalties  are  herein 
changed.  The  wilful  failure  upon  the  part  of  any  carrier  sub- 
ject to  said  acts  to  file  and  publish  the  tariffs  of  rates  and  charges 
as  required  by  said  acts,  or  strictly  to  observe  such  tariffs  until 
changed  according  to  law,  shall  be  a  misdemeanor,  and  upon 
conviction  thereof  the  corporation  offending  shall  be  subject  to  a 
fiine  of  not  less  than  one  thousand  dollars  nor  more  than  twenty 
thousand  dollars  for  each  offense. 

First  part  of  section  one,  Act  February  19,  1903,  known  as  the 
"Elkins  Act." 

Prior  to  this  act  only  the  agents  of  the  corporations  could  be 
guilty  of  criminal  offenses  against  the  act  to  regulate  commerce. 
United  States  v.  Milwaukee  Refrigerator  Transit  Co.,  142  Fed. 
247,  249.  A  carrier  and  its  agents  may  be  prosecuted  under  the 
same  indictment.  United  States  v.  New  York  C.  &  H.  R.  R.  Co., 
146  Fed.  298.  Affirming  by  the  Supreme  Court,  holding  that  the 
act  was  not  unconstitutional  in  imputing  to  a  corporation  a  crim- 


538  Acts  Regulating  Commerce,  [§  371. 

inal  ofifense.     New  York  C.  &  H.  R.  R.  Co.  v.  United  States,  212 
U.  S.  481,  53  L.  Ed.  613,  29  Sup.  Ct.  304. 

Notes  of  Decisions  Rendered  Since  1909. 

Failure  to  observe  the  tariff  rate  by  carrying  a  less  or  different 
rate  than  stated  therein  is  punishable.  Hocking  \^alley  Ry.  Co. 
V.  U.  S.,  210  Fed.  ly^,  127  C.  C.  A.  285,  affirming  U.  S.  v. 
Hocking  \'alley  Ry.  Co.,  194  Fed.  234.  The  violation  of  the 
tariff  in  this  case  was  the  extension  of  credit  to  shippers  for 
freight  due. 

§  371.  Rebate.  Punishment  for  Ofifering,  Granting, 
Soliciting  or  Accepting. — And  it  shall  be  unlawful  for  any 
person,  persons,  or  corporation  to  oft'er,  grant,  or  give,  or  to 
solicit,  accept  or  receive  any  rebate,  concession,  or  discrimination 
in  respect  (to)  the  transportation  of  any  property  in  interstate 
or  foreign  commerce  by  any  common  carrier  subject  to  said 
act  to  regulate  commerce  and  the  acts  amendatory  (thereof) 
whereby  any  such  property  shall  by  any  device  whatever  be 
transported  at  a  less  rate  than  that  named  in  the  tariff's  published 
and  filed  by  such  carrier,  as  is  required  by  said  act  to  regulate 
commerce  and  the  acts  amendatory  (thereof,)  or  whereby  any 
other  advantage  is  given  or  discrimination  is  practiced.  Every 
person  or  corporation  (whether  carrier  or  shipper)  who 
shall,  (knowingly),  off'er,  grant,  or  give,  or  solicit,  accept, 
or  receive  any  such  rebates,  concessions  or  discrimination  shall 
be  deemed  guilty  of  a  misdemeanor,  and  on  conviction  thereof 
shall  be  punished  by  a  fine  of  not  less  than  one  thousand  dollars 
nor  more  than  twenty  thousand  dollars:  (Provided,  That  any 
person,  or  any  officer  or  director  of  any  corporation  subject  to 
the  provisions  of  this  act,  or  the  act  to  regulate  commerce  and  the 
acts  amendatory  thereof,  or  any  receiver,  trustee,  lessee,  agent, 
or  person  acting  for  or  employed  by  any  such  corporation,  who 
shall  be  convicted  as  aforesaid,  shall,  in  addition  to  the  fine  herein 
provided  for,  be  liable  to  imprisonment  in  the  penitentiary  for  a 
term  of  not  exceeding  two  years,  or  both  such  fine  and  imprison- 
ment, in  the  discretion  of  the  court.)  Every  violation  of  this 
section  shall  be  prosecuted  in  any  court  of  the  United  States 
having  jurisdiction  of  crimes  within  the  district  in  which  such 
violation  was  committed,  or  through  which  the  transportation 
may  have  been  conducted ;  and  whenever  the  oft'ense  is  begun 
in  one  jurisdiction  and  completed   in  another  it  may  be   dealt 


§  371.]  Annotated.  539 

with,  inquired  of,  tried,  determined,  and  punished  in  either  juris- 
diction in  the  same  manner  as  if  the  offense  had  been  actually 
and  wholly  committed  therein. 

Second  part  of  section  one  of  Act  February  19,  1903,  substan- 
tially as  enacted,  the  amendments  of  June  29,  1906,  being  in- 
closed in  brackets.  The  part  of  the  original  act  stricken  by  the 
amended  act  was  as  follows : 

"In  all  convictions  occurring  after  the  passage  of  this  act  for 
offenses  under  said  acts  to  regulate  commerce,  whether  commit- 
ted before  or  after  the  passage  of  this  act,  or  for  offenses  under 
this  section,  no  penalty  shall  be  imposed  on  the  convicted  party 
other  than  the  fine  prescribed  by  law,  imprisonment  wherever 
now  prescribed  as  part  of  the  penalty  being  hereby  abolished." 

Before  the  passage  of  the  Elkins  law  it  was  held  that  as  the 
question  of  whether  or  not  the  facts  and  circumstances  consti- 
tuted unjust  or  illegal  discrimination  must  be  left  to  a  jury  there 
could  be  no  certainty  as  to  whether  or  not  a  particular  act  was 
criminal,  and,  therefore,  there  could  be  no  criminal  punishment 
for  violating  section  three  of  the  act.  Tozer  v.  United  States, 
52  Fed.  917.  But  a  conviction  against  an  agent  of  a  carrier 
could  be  had  under  section  ten  for  transporting  for  less  than  the 
published  rate.  United  States  v.  Mich.  Cent.  R.  Co.,  43  Fed. 
26.  No  conviction  for  receiving  a  rebate  from  a  joint  rate  not 
filed  and  published.  United  States  v.  Wood,  145  Ala.  405.  A 
consignee  may  be  guilty  as  well  as  a  consignor.  The  Hepburn 
law  did  not  affect  offenses  committed  prior  to  its  passage. 
United  States  v.  Standard  Oil  Co.,  148  Fed.  719,  155  Fed.  305. 
Reversed  on  other  grounds.  Standard  Oil  Co.  v.  United  States, 
164  Fed.  376,  90  C.  C.  A.  364.  See  also  that  offenses  not  affected 
by  section  ten  of  the  Hepburn  Act.  United  States  v.  Chicago,  St. 
P.,  M.  &  O.  Ry.  Co.,  151  Fed.  84;  United  States  v.  New  York 
C.  &  H.  R.  R.  Co.,  153  Fed.  630.  Offenses  hereunder  may  be 
prosecuted  by  information.  United  States  v.  Camden  Iron 
Works,  150  Fed.  214.  Reversed,  158  Fed.  561,  85  C.  C.  A.  585, 
because  the  initial  carrier  which  paid  the  rebate  had  filed  no 
through  schedule  of  rates  with  the  Commission.  A  shipment 
from  one  point  to  another  in  New  York  state  but  passing  through 
another  state  is  interstate  commerce  and  subject  to  this  law. 
Also  holding  that  section  ten  of  Hepburn  law  did  not  affect 
prosecution  for  offenses  committed  prior  thereto.  United  States 
V.  Delaware,  L.  &  W.  R.  Co.,  152  Fed.  269.     Death  before  the 


540  Acts  Regulating  Commerce,  [§  371. 

fine  is  paid  abates  the  judgment.  United  States  v.  Pomeroy, 
152  Fed.  279.  Reversed,  because  the  circuit  court  had  no  power 
to  act,  an  appeal  having  been  taken.  United  States  v.  New 
York  C.  &  H.  R.  R.  Co.,  164  Fed.  324,  90  C.  C.  A.  256.  Act  con- 
stitutionaL  Crime  may  be  punished  in  any  district  through 
which  the  transportation  is  conducted.  Contract  to  maintain 
estabhshed  rates  ineffective  after  a  higher  rate  has  been  filed 
and  published.  Armour  Packing  Co.  v.  United  States,  153  Fed. 
1,  82  C.  C.  A.  135,  14  L.  R.  A.  (N.  S.)  400.  Affirmed.  209  U. 
S.  56,  52  L.  Ed.  681,  28  Sup.  Ct.  428.  See  note  to  law  edition. 
Section  not  restricted  to  departures  from  tariff  rates,  but  act 
applies  to  all  illegal  discriminations.  United  States  v.  Vacuum 
Oil  Co.,  153  Fed.  598.  Defective  indictments  for  discrimina- 
tion. United  States  v.  B.  &  O.  R.  Co.,  153  Fed.  997.  The  extent 
stated  to  which  section  one  of  Elkins  act  was  repealed  by  Hep- 
burn law.  Great  Northern  Ry.  Co.  v.  United  States,  155  Fed. 
945.  Affirmed,  holding  that  the  right  to  prosecute  for  an  offense 
committed  prior  to  the  Hepburn  law  was  not  taken  away  by  that 
law.  Great  N.  R.  Co.  v.  United  States,  208  U.  S.  452,  52  L. 
Ed.  567,  28  Sup.  Ct.  313.  Same  effect  and  holding  act  not  un- 
constitutional. United  States  v.  Great  N.  R.  Co.,  157  Fed.  288. 
Where  tariff  filed  by  another  no  crime.  United  States  v.  New 
York  C.  &  PI.  R.  R.  Co.,  157  Fed.  293.  Act  not  unconstitutional 
and  applies  to  a  carrier  wholly  within  a  state  when  it  joins  in  the 
published  through  rate.  United  States  v.  \'acuum  Oil  Co.,  158 
Fed.  536.  Act  applies  to  express  companies.  The  failure  to  use 
the  word  "unjust"  before  "discrimination"  in  new  act  does  not 
broaden  eff'ect  of  act  as  amended.  United  States  v.  Wells  Fargo 
Ex.  Co.,  161  Fed.  606.  Applies  to  refunding  elevator  charges 
when  no  provision  in  tariff'  therefor.  Chicago,  St.  P.,  AI.  &  O. 
Ry.  Co.  V.  United  States,  162  Fed.  835.  No  defense  that  re- 
bate granted  in  compromise  of  claims  for  loss  of  property  in 
transit.  United  States  v.  A.  T.  &  S.  F.  Ry.  Co.,  163  Fed.  111. 
Each  shipment  upon  which  a  rebate  is  actually  paid,  regardless 
of  its  size,  is  a  separate  off'ense.  No  crime  unless  and  until  pay- 
ment is  made.  Standard  Oil  Co.  of  Indiana  v.  United  States, 
164  Fed.  376,  90  C.  C.  A.  364.  Each  rebate  payment,  regard- 
less of  number  of  shipments,  constitutes  a  separate  offense ;  not 
decided  whether  or  not  each  separate  agreeihent  to  pay  a  rebate 
would  constitute  an  offense.  United  States  v.  Steams  Salt  & 
Lumber  Co.,   165  Fed.  735.     Each  payment,  although  covering 


§  371.]  Annotated.  541 

more  than  one  shipment,  constitutes  one  and  only  one  offense. 
United  States  v.  Bmich,  165  Fed.  736.  Prosecution  for  failure 
to  file  schedules  must  be 'at  Washington,  D.  C.  "Rates  in  force" 
defined.  New  York  C.  &  H.  R.  R.  Co.  v.  United  States,  166  Fed. 
267,  92  C.  C.  A.  331,  reversing  153  Fed.  630.  The  device  by 
which  a  rebate  is  granted  is  illegal  even  though  not  secret  or 
fraudulent.  Violations  may  be  tried  in  any  district  through 
which  the  transportation  is  had.  Armour  Packing  Co.  v.  United 
States,  209  U.  S.  56,  52  L.  Ed.  681,  28  Sup.  Ct.  428;  Chicago,  B. 
&  Q.  R.  Co.  V.  United  States,  209  U.  S.  90,  52  L.  Ed.  698,  28  Sup. 
Ct.  439.  Where  full  rate  is  paid  and  rebate  granted  at  intervals, 
upon  claims  being  filed  therefor,  each  rebate  payment  consti- 
tutes a  separate  offense.  New  York  C.  &  H.  R.  R.  Co.  v.  United 
States,  212  U.  S.  481,  498,  53  L.  Ed.  613,  29  Sup.  Ct.  304.  Same 
style  case,  212  U.  S.  500,  53  L.  Ed.  624,  29  Sup.  Ct.  304.  A  party 
to  a  joint  rate,  though  not  filed  and  published  by  it,  may  be 
guilty.  United  States  v.  New  York  C.  &  H.  R.  R.  Co.,  212  U. 
S.  509,  53  L.  Ed.  629.  29  Sup.  Ct.  313.  W^here  the  shipper 
pays  the  legal  rate  and  at  intervals  receives  a  rebate,  each  pay- 
ment thereof  is  a  separate  oft'ense.  New  York  C.  &  H.  R.  R. 
Co.  V.  United  States,  212  U.  S.  481,  53  L.  Ed.—,  29  Sup.  Ct.  304. 
Rate  collected  under  contract  made  before  tariff  filed  and  dif- 
ferent from  tariff  rate  illegal.  Armour  Packing  Co.  v.  United 
States,  209  U.  S.  56,  52  L.  Ed.  681,  28  Sup.  Ct.  428. 

Notes  of  Decisions  Rendered  Since  1909. 

"Rebate"  defined.  Am.  Sugar  Refining  Co.  v.  Delaware, 
L.  &  W.  R.  Co.,  207  Fed.  733,  125  C.  C.  A.  251.  Reversing 
same  styled  case,  200  Fed.  652.  Extending  credit  to  shippers 
illegal.  Hocking  Valley  Ry.  Co.  v.  U.  S.,  210  Fed.  735,  affirm- 
ing, U.  S.  V.  Flocking  Valley  Ry.  Co.,  194  Fed.  234;  Sunday 
Creek  Co.  v.  U.  S.,  210  Fed.  747,  affirming  U.  S.  v.  Sunday 
Creek  Co.,  194  Fed.  752.  Whether  a  particular  payment  is  le- 
gal must  be  determined  as  of  the  date  of  the  service.  Elwood 
Grain  Co.  v.  St.  Joseph  &  G.  I.  Ry.  Co.,  202  Fed.  845,  121  C. 
C.  A.  153.  Violation  of  transit  rules  and  form  of  indictment 
discussed.  Grand  Rapids  &  I.  Ry.  Co.  v.  U.  S.,  212  Fed.  577. 
Contract  for  expedited  service  not  provided  for  in  tariff  illegal. 
Chicago  &  A.  R.  Co.  v.  Kirby,  225  U.  S.  155,  56  L.  Ed.  1033,  32 
Sup.  Ct.  648.  When  two  lumber  manufacturing  companies  use 
the  same  railroad,  owned  by  one  of  them,  the  one  not  owning  the 


542  Acts  Regulating  Commerce,  [§  371. 

railroad  can  not  participate  in  divisions  allowed  such  carrier. 
Fourche  River  Lumber  Co.  v.  Bryant  Lumber  Co.,  230  U.  S.  816, 
57  L.  Ed.  1498,  33  Sup.  Ct.  887,  reversing  Bryant  Lumber  Co.  v. 
Fourche  River  Lumber  Co.,  97  Ark.  623,  135  S.  W.  796. 

A  shipper  can  not  be  convicted  of  accepting  a  rate  less  than 
the  published  rate  when  the  true  rate  is  unknown,  a  fine  of 
$29,240,000  set  aside.  Standard  Oil  Co.  of  Ind.  v.  U.  S.,  164 
Fed.  376,  90  C.  C.  A.  364,  reversing  U.  S.  v.  Standard  Oil  Co., 
155  Fed.  305.  Refund  of  elevator  charges.  Wisconsin  C.  Ry. 
Co.  V.  U.  S.,  169  Fed.  76.  94  C.  C.  A.  444. 

Intent  of  the  carrier  is  the  essence  of  the  offense.  A.  T.  &  S. 
F.  Ry.  Co.  V.  U.  S.,  170  Fed.  250,  95  C.  C.  A.  446,  reversing  U. 
S.  V.  A.  T.  &  S.  F.  Ry.  Co.,  163  Fed.  111. 

Each  payment  of  freight  one  ofifense.  U.  S.  v.  Standard  Oil 
Co.,  170  Fed.  988.  Case  distinguished  and  each  shipment  held 
the  unit.  U.  S.  v.  Standard  Oil  Co.  of  N.  Y.,  192  Fed.  438. 
The  question  is  discussed  and  the  conclusion  reached  that  each 
shipment  is  a  separate  ofTense.  Grand  Rapids  &  L  Ry.  Co.  v. 
U.  S.,  212  Fed.  577,  587,  129  C.  C.  A.  113.  Allegations  in  in- 
dictment sufficient.  Standard  Oil  Co.  of  N.  Y.  v.  U.  S.,  179 
Fed.  614,  103  C.  C.  A.  172.  No  violation  of  the  statute  under 
the  facts  are  shown.  U.  S.  v.  Standard  Oil  Co.  of  Lid.,  183 
Fed.  223.  Whether  a  rebate  or  a  settlement  of  a  valid  claim  a 
question  for  the  jury.  Lehigh  Valley  R.  Co.  v.  U.  S.,  188 
Fed.  879,  110  C.  C.  A.  513,  affirming  U.  S.  v.  P.  &  R.  Ry.  Co., 
184  Fed.  543;  U.  S.  v.  Bethlehem  Steele  Co.,  184  Fed.  546;  U. 
S.  V.  Lehigh  Valley  R.  Co.,  184  Fed.  546.  Posting  necessary.  U. 
S  V.  Miller,  187  Fed.  375,  reversed  holding  contra  U.  S.  v. 
Miller,  223  U.  S.  599,  56  L.  Ed.  568,  32  Sup.  Ct.  323.  That  a 
rate  not  intended  to  apply  no  defense.  Merchants  &  Miners 
Transportation  Co.  v.  U.  S.,  199  Fed.  902.  Lidictment  for  fraud- 
ulently obtaining  transportation  at  an  illegal  rate.  U.  S.  v.  Ster- 
ling Salt  Co.,  200  Fed.  593.  No  variance  under  the  facts  here. 
Grand  Rapids  &  L  R.  Co.  v.  U.  S.,  212  Fed.  577  and  589.  Nich- 
ols &  Cox  Lumber  Co.  v.  U.  S.,  212  Fed.  588.  A  common  car- 
rier may  not  grant  special  favors.  Johnson  v.  N.  Y.,  N.  H.  & 
H.  R.  Co.,  Ill  Me.  263,  88  Atl.  988.  Not  a  rebate  to  compen- 
sate a  shipper  for  services  rendered  or  instrumentalities  fur- 
nished. U.  S.  V.  B.  &  O.  R.  Co.,  231  U.  S.  274,  58  L.  Ed.  218,  34 
Sup.  Ct.  75.  The  filed  tariffs  must  be  taken  notice  of  by  shippers 
and  must  be  adhered  to.  A.  T.  &  S.  F.  Rv.  Co.  v.  Robinson,  233  U. 


§  372.]  Annotated.  543 

S.  173,  58  L.  Ed.  901,  34  Sup.  Ct.  556.  Great  No.  Ry.  Co.  v. 
O'Connor,  232  U.  S.  508,  58  L.  Ed.  703,  34  Sup.  Ct.  380.  Pay- 
ment to  freight  forwarder  a  rebate.  Waters-Pierce  Oil  Co.  v. 
United  States,  222  Fed.  69,  —  C.  C.  A.  — .  May  be  rebate  al- 
though part  of  through  movement  in  Canada.  United  States  v. 
Grand  Trunk  R.  Co.,  225  Fed.  283. 

§  372.  Act  of  Officer  or  Agent,  When  Binding. — In  con- 
struing and  enforcing  the  provisions  of  this  section,  tlie  act,  omis- 
sion, or  failure  of  any  officer,  agent,  or  other  person  acting  for 
or  employed  by  any  common  carrier,  or  shipper,  acting  within 
the  scope  of  his  employment,  shall  in  every  case  be  also  deemed 
to  be  the  act,  omission,  or  failure  of  such  carrier  or  shipper  as 
well  as  that  of  the  person. 

Second  paragraph  of  section  one  of  the  original  Elkins  Act, 
except  the  act  of  June  29,  1906,  added  the  words  "or  shipper" 
after  "carrier"  where  it  occurs. 

Because  the  act  of  the  agent  is  the  act  of  the  corporation,  both 
may  be  included  in  one  indictment.  New  York  C.  &  H.  R.  R. 
Co.  V.  United  States,  212  U.  S.  481,  53  L.  Ed.  613,  29  Sup.  Ct. 
304. 

§  373.  Carrier  Filing  or  Participating  in  Rate  Bound 
Thereby. — Whenever  any  carrier  files  with  the  Interstate  Com- 
merce Commission  or  publishes  a  particular  rate  under  the  pro- 
visions of  the  act  to  regulate  commerce  or  acts  amendatory 
thereof,  or  participates  in  any  rates  so  filed  or  published,  that 
rate  as  against  such  carrier,  its  officers  or  agents,  in  any  prose- 
cution begun  under  this  act  shall  be  conclusively  deemed  to  be 
the  legal  rate,  and  any  departure  from  such  rate,  or  any  offer 
to  depart  therefrom,  shall  be  deemed  to  be  an  offense  under  this 
section  of  this  act. 

Part  of  second  paragraph  of  section  one  Elkins  Act,  as  orig- 
inally exacted,  except  "thereof"  was  substituted  for  "thereto,"  in 
the  act  of  June  29,  1906. 

Section  applied  in  a  prosecution  for  rebating.  U.  S.  v.  New 
York  C.  &  H.  R.  Co.,  212  U.  S.  509.  53  L.  Ed.  629,  29  Sup.  Ct. 
313. 

§  374.  Forfeiture  for  Rebating  in  Addition  to  Penalties. 
Limitation  of  Six  Years  Fixed. — Any  person,  corporation,  or 
company  who  shall  deliver  property  for  interstate  transportation 
to  any  common  carrier,  subject  to  the  provisions  of  this  act,  or 
for  whom,  as  consignor  or  consignee,  any  such  carrier  shall  trans- 


544  Acts  Regulating  Commerce,  [§  375. 

port  property  from  one  state,  territory,  br  the  District  of  Colum- 
bia, to  any  other  state,  territory  or  the  District  of  Columbia; 
or  foreign  country,  who  shall  knowingly  by  employee,  agent, 
officer,  or  otherwise,  directly  or  indirectly,  by  or  through  any 
means  or  device  whatsoever,  receive  or  accept  from  such 
common  carrier  any  sum  of  money  or  any  other  valuable  consid- 
eration as  a  rebate  or  offset  against  the  regular  charges  for  trans- 
portation of  such  property,  as  fixed  by  the  schedules  of  rates 
provided  for  in  this  act,  shall  in  addition  to  any  penalties  pro- 
A'ided  by  this  act  forfeit  to  the  United  States  a  sum  of  money 
three  times  the  amount  of  money  so  received  or  accepted  and 
three  times  the  value  of  any  other  consideration  so  received  or 
accepted,  to  be  ascertained  by  the  trial  court ;  and  the  Attorney- 
General  of  the  United  States  is  authorized  and  directed,  when- 
ever he  has  reasonable  grounds  to  believe  that  any  such  person, 
corporation-,  or  company  has  knowingly  received  or  accepted 
from  any  such  common  carrier  any  sum  of  money  or  other  val- 
uable consideration  as  a  rebate  or  oft'set  as  aforesaid,  to  in- 
stitute in  any  court  of  the  United  States  of  competent  jurisdic- 
tion a  civil  action  to  collect  the  said  sum  or  sums  so  forfeited 
as  aforesaid ;  and  in  the  trial  of  said  action  all  such  rebates  or 
other  considerations  so  received  or  accepted  for  a  period  of  six 
years  prior  to  the  commencement  of  the  action  may  be  included 
therein,  and  the  amount  recovered  shall  be  three  times  the 
total  amount  of  money,  or  three  times  the  total  value  of  such 
consideration,  so  received  or  accepted,  or  both,  as  the  case  may 
be. 

New  provision  added  to  section  one,  Elkins  Act,  by  act  June 
29,  1906. 

§  375.  Jurisdiction  Over  Water  Carriers. — When  prop- 
erty may  be  or  is  transported  from  point  to  point  in  the  United 
States  by  rail  and  water  through  the  Panama  Canal  or  other- 
wise, the  transportation  being  by  a  common  carrier  or  carriers, 
and  not  entirely  within*  the  limits  of  a  single  state,  the  Interstate 
Commerce  Commission  s-hall  have  jurisdiction  of  such  transpor- 
tation and  of  the  carriers,  both  by  rail  and  by  water,  which  may 
or  do  engage  in  the  same,  in  the  following  particulars,  in  addition 
to  the  jurisdiction  given  by  the  act  to  regulate  commerce,  as 
amended  June  eighteenth,  nineteen  hundred  and  ten : 

Part  of  Panama  Canal  Act,  Act  Aug.  24,  1912.  Through  route 
with  water  carrier  established  and  section  discussed.     Augusta  & 


§  376.]  Annotated.  545 

Savannah  Steamboat  Co.  v.  O.  S.  S.  Co.,  26  I.  C.  C.  380.  Power 
of  the  Commission  under  the  section  stated.  Wharfage  Facili- 
ties at  Pensacola,  Fla.,  27  I.  C.  C.  252,  257.  Boat  hnes  upon 
meeting  all  reasonable  requirements  are  entitled  to  the  estab- 
lishment of  through  routes  and  joint  rates.  Truckers'  Transfer 
Co.  V.  C.  &  W.  C.  Ry.  Co.,  27  I.  C.  C.  275.  "Any  proper  develop- 
ment that  will  open  our  water  ways  to  the  use  of  the  public 
should  be  encouraged."  Lumber  Rates,  Oregon  and  Washington 
to  Eastern  Points,  29  I.  C.  C.  609,  619.  Through  routes  and 
joint  rates  established  with  water  carriers.  Tampa  Board  of 
Trade  v.  L.  &  N.  R.  Co.,  30  I.  C.  C.  2>77 ;  Decatur  Navigation  Co. 
V.  L.  &  N.  R.  Co.,  31  I.  C.  C.  281  ;  Bowling  Green  Protective 
Ass'n  V.  E.  &  B.  G.  P.  Co.,  31  I.  C.  C.  301,  306.  Through  routes 
and  joint  rates  established  with  rail  carrier,  although  such  car- 
rier had  rails  the  whole  length  of  the  route,  the  Commission  say- 
ing, "The  spirit  of  the  act  to  regulate  commerce  is  to  maintain 
the  freedom  of  our  ports  and  to  allow  boat  lines  to  engage  in 
traffic  upon  equal  terms."  Pacific  Navigation  Co.  v.  S.  P.  Co., 
31  I.  C.  C.  472;  Transcontinental  Commodity  Rates,  31  I.  C.  C. 
449 ;  Tampa  Board  of  Trade  v.  A.  &  V.  R.  Co.,  2>2>  I.  C.  C.  457 ; 
Federal  Sugar  Refining  Co.  v.  C.  of  N.  J.  R.  Co.,  35  I.  C.  C.  488. 

§  376.  Physical  Connection  between  Rail  Lines  and 
Dock  of  Water  Carriers. — To  establish  physical  connection 
between  the  lines  of  the  rail  carrier  and  the  dock  of  the  water 
carrier  by  directing  the  rail  carrier  to  make  suitable  connection 
between  its  line  and  a  track  or  tracks  which  have  been  constructed 
from  the  dock  to  the  limits  of  its  right  of  way.  or  by  directing 
either  or  both  the  rail  and  water  carrier,  individually  or  in  con- 
nection with  one  another,  to  construct  and  connect  with  the  lines 
of  the  rail  carrier  a  spur  track  or  tracks  to  the  dock.  This  provi- 
sion shall  only  apply  where  such  connection  is  reasonal)ly  practi- 
cable, can  be  made  with  safety  to  the  public,  and  where  the 
amount  of  business  to  be  handled  is  sufficient  to  justify  the  out- 
lay. 

The  Commission  shall  have  full  authority  to  determine  the 
terms  and  conditions  upon  which  these  connecting  tracks,  when 
constructed,  shall  be  operated,  and  it  may,  either  in  the  construc- 
tion or  the  operation  of  such  tracks,  determine  what  sum  shall 
be  paid  to  or  by  either  carrier.  The  provisions  of  this  para- 
graph shall  extend  to  cases  where  the  dock  is  owned  by  other 
parties  than  the  carrier  involved. 

—18 


546  Acts  Regulating  Commerce,  [§  377. 

Paragraphs  2  and  3  of  Panama  Canal  Act,  amending  Sec.  6 
of  original  act. 

§  Z77 .  Throug-h  Routes  and  Joint  Rates  between  Rail 
and  Water  Carriers. — To  establish  through  routes  and  maxi- 
mum joint  rates  between  and  over  such  rail  and  water  lines,  and 
to  determine  all  the  terms  and  conditions  under  which  such  lines 
shall  be  operated  in  the  handling  of  the  traffic  embraced. 

Paragraph  4  of  Panama  Canal  Act  amending  Sec.  6  of  orig- 
inal Act. 

§  378.  Proportional  Rates  to  and  from  Ports. — To  estab- 
lish maximum  proportional  rates  by  rail  to  and  from  the  ports 
to  which  the  traffic  is  brought,  or  from  which  it  is  taken  by  the 
water  carrier,  and  to  determine  to  what  traffic  and  in  connection 
with  what  vessels  and  upon  what  terms  and  conditions  such  rates 
shall  apply.  .  By  proportional  rates  are  meant  those  which  differ 
from  the  corresponding  local  rates  to  and  from  the  port  and 
which  apply  only  to  traffic  w^hich  has  been  brought  to  the  port  or 
is  carried  from  the  port  by  a  common  carrier  by  water. 

Paragraph  5  of  the  Panama  Canal  Act  amending  Sec.  6  of 
original  Act. 

§  379.  Through  Rates  via  Panama  Canal. — If  any  rail 
carrier  subject  to  the  act  to  regulate  commerce  enters  into  ar- 
rangements with  any  water  carrier  operating  from  a  port  in  the 
United  States  to  a  foreign  country,  through  the  Panama  Canal  or 
otherwise,  for  the  handling  of  through  business  between  interior 
points  of  the  United  States  and  such  foreign  country,  the  In- 
terstate Commerce  Commission  may  require  such  railways  to 
enter  into  similar  arrangements  with  any  or  all  other  lines  of 
steamships  operating  from  said  port  to  the  same  foreign  country. 

Paragraph  6  of  Panama  Canal  Act  amending  Sec.  6  of  original 
Act. 

§  380.  Conditions  under  Which  Through  Routes  and 
Joint  Rates  with  Water  Carriers  May  Be  Operated  to  Be 
Prescribed  by  the  Commission. — The  orders  of  the  Inter- 
state Commerce  Commission  relating  to  this  section  shall  only 
be  made  upon  formal  complaint  or  in  proceedings  instituted  by 
the  Commission  of  its  own  motion  and  after  full  hearing.  The 
orders  provided  for  in  the  two  amendments  to  the  act  to  regulate 
commerce  enacted  in  this  section  shall  be  served  in  the  same 
manner  and  enforced  by  the  same  penalties  and  proceedings  as 
are  the  orders  of  the  Commission  made  under  the  provisions  of 


§  381.]  Annotated.  547 

section  fifteen  of  the  act  to  regulate  commerce,  as  amended  June 
eighteenth,  nineteen  hundred  and  ten,  and  they  may 
be  conditioned  for  the  payment  of  any  sum  or  the  giving  of  se- 
curity for  the  payment  of  any  sum  or  the  discharge  of  any  obli- 
gation which  may  be  required  by  the  terms  of  said  order. 

Paragraph  7  of  Panama  Canal  Act  amending  Sec.  6  of  orig- 
inal Act.    For  annotation  see  375  supra. 

§  381.  Contracts  and  Combinations  to  Prevent  Con- 
tinuous Carriage  of  Freight  Prohibited. — That  it  shall  be 
unlawful  for  any  common  carrier  subject  to  the  provisions  of 
this  act  to  enter  into  any  combination,  contract,  or  agreement, 
expressed  or  implied,  to  prevent,  by  change  of  time  schedule,  car- 
riage in  different  cars,  or  by  other  means  or  devices,  the  car- 
riage of  freights  from  being  continuous  from  the  place  of  ship- 
ment to  the  place  of  destination  ;  and  no  break  of  bulk,  stoppage, 
or  interruption  made  by  such  common  carrier  shall  prevent  the 
carriage  of  freights  from  being  and  being  treated  as  one  contin- 
uous carriage  from  the  place  of  shipment  to  the  place  of  desti- 
nation, unless  such  break,  stoppage,  or  interruption  was  made  in 
good  faith  for  some  necessary  purpose,  and  without  any  intent 
to  avoid  or  unnecessarily  interrupt  such  continuous  carriage  or 
to  evade  any  of  the  provisions  of  this  act. 

Section  seven  of  the  original  act  to  regulate  commerce. 

An  injunction  may  be  granted  to  prevent  a  carrier  and  its  em- 
ployees from  refusing  to  receive  passengers  and  commodities 
from  a  connecting  line.  Toledo,  A.  A.  &  N.  M.  Ry.  Co.  v. 
Penn.  Co.,  54  Fed.  730,  746,  19  L.  R.  A.  387,  5  I.  C.  C.  545,  22 
U.  S.  App.  561. 

Notes  of  Decisions  Rendered  Since  1909. 

Stopping  oil  in  pipe  lines  at  state  lines  held  under  the  facts  to 
violate  section.  .  Re  Pipe  Lines,  24  I.  C.  C.  1,  7.  For  history  of 
this  case  see  Prairie  Oil  &  Gas  Co.  v.  U.  S.,  Pipe  Line  case,  204 
Fed.  798,  Op.  Com.  Ct.  Nos.  75-80,  p.  545 ;  U.  S.  v.  Ohio  Oil  Co., 
234  U.  S.  548,  58  L.  Ed.  1394,  34  Sup.  Ct.  956.  Carload  freight 
should  not  be  required  to  be  unloaded  at  points  of  connection 
between  different  carriers.  St.  L.  S.  &  P.  R.  Co.  v.  P.  &  P.  N. 
Ry.  Co.,  26  I.  C.  C.  226,  234 ;  Louisville  Board  of  Trade  v.  L.  C. 
&  S.  T.  Co.,  27  I.  C.  C.  499,  506. 

§  382.  Damages  and  Attorneys  Fees  Allowed  for  Viola- 
tions.— That    in  case    any  common  carrier    subject  to  the    pro- 


548  Acts  Regulating  Commerce,  [§  383. 

visions  of  this  act  shall  do,  cause  to  be  done,  or  permit  to  be  done 
any  act,  matter,  or  thing  in  this  act  prohibited  or  declared  to  be 
unlawful,  or  shall  omit  to  do  any  act,  matter,  or  thing  in  this  act 
required  to  be  done,  such  common  carrier  shall  be  liable  to  the 
person  or  persons  injured  thereby  for  the  full  amount  of  dam- 
ages sustained  in  consequence  of  any  such  violation  of  the  pro- 
visions of  this  act,  together  with  a  reasonable  counsel  or  attor- 
ney's fee,  to  be  fixed  by  the  court  in  every  case  of  recovery, 
which  attorney's  fee  shall  be  taxed  and  collected  as  part  of  the 
costs  in  the  case. 

Section  eight  of  original  act.  For  annotations  see  next  suc- 
ceeding section. 

§  383.  Where  to  Sue  for  Damages,  Compulsory  Attend- 
ance of  Witnesses  and  Production  of  Papers. — That  any 
person  or  persons  claiming  to  be  damaged  by  any  common  car- 
rier subject  to  the  provisions  of  this  act  may  either  make  com- 
plaint to  the  Commission  as  hereinafter  provided  for,  or  may 
bring  suit  in  his  or  their  own  behalf  for  the  recovery  of  the  dam- 
ages for  which  such  common  carrier  may  be  liable  under  the 
provisions  of  this  act,  in  any  district  or  circuit  court  of  the 
United  States  of  competent  jurisdiction ;  but  such  person  or  per- 
sons shall  not  have  the  right  to  pursue  both  of  said  remedies, 
and  must  in  each  case  elect  which  one  of  the  two  methods  of 
procedure  herein  provided  for  he  or  they  will  adopt.  In  any 
such  action  brought  for  the  recovery  of  damages  the  court  be- 
fore which  the  same  shall  be  pending  may  compel  any  director, 
officer,  receiver,  trustee,  or  agent  of  the  corporation  or  company 
defendant  in  such  suit  to  attend,  appear,  and  testify  in  such  case, 
and  may  compel  the  production  of  the  books  and  papers  of  such 
corporation  or  company  party  to  any  such  suit ;  the  claim  that 
any  such  testimony  or  evidence  may  tend  to  criminate  the  person 
giving  such  evidence  shall  not  excuse  such  witness  from  testify- 
ing, but  such  evidence  or  testimony  shall  not  be  used  against  such 
person  on  the  trial  of  any  criminal  proceeding. 

Section  nine  of  tlie  original  act. 

Sections  eight  and  nine  are  so  related  that  the  annotations 
herein  apply  to  each.  There  are  many  cases,  formal  and  informal, 
awarding  reparation  without  announcing  any  rule  or  principle. 
T'hese  are  not  sufficiently  important  to  be  cited.  The  commis- 
sion can  not  award  damages  for  failure  to  furnish  cars,  an 
action  therefor  must  be  brought  in  a  case  at  common  law.    Heck 


§  383.]  Annotated.  549 

V.  East  Tenii.,  \a.  &  Ga.  Ry.  Co.,  1  I.  C.  C.  495,  1  I.  C.  R.  7yD; 
Riddle  V.  New  York,  L.  E.  &  W.  R.  Co.,  1  I.  C.  C.  594,  1  I.  C. 
R.  787.  These  cases  were  decided  before  the  amendment  to 
section  sixteen  by  act  March  2,  1889,  and  since  said  amendment 
are  not  followed.  Rawson  v.  Newport  N.  &  M.  V.  R.  Co.,  3  I. 
C.  C.  6,  2  I.  C.  R.  626;  MacLoon  v.  Chicago  &  N.  W.  R.  Co.,  5 
I.  C.  C.  84,  3  I.  C.  R.  711. 

When  a  shipper  gives  instructions  as  to  how  his  freight  shall 
be  routed,  a  violation  of  said  instructions  to  his  injury  author- 
izes a  recovery  of  the  damage  sustained.  Pankey  v.  Richmond- 
&  D.  R.  Co.,  3  I.  C.  C.  658,  3  I.  C.  R.  2>2> ;  Rea  v.  M.  &  O.  R. 
Co.,  7  I.  C.  C.  43.  But  if  no  instructions  are  given,  carrier  may 
route.  Dewey  Bros.  Co.  v.  B.  &  O.  R.  Co.,  11  I.  C.  C.  481. 
But  carrier  must  forward  shipments  with  due  regard  to  rights  of 
shipper,  and  upon  failure  to  do  so,  reparation  allowed.  Henne- 
pin Paper  Co.  v.  N.  Pac.  Ry.  Co.,  12  I.  C.  C.  535.  These  sec- 
tions with  reference  to  reparation  show  an  intention  upon  the 
part  of  Congress  to  give  the  Commission  power  to  fix  rates. 
Perry  v.  Florida  C.  &  P.  R.  Co.,  5  I.  C.  C.  97,  3  I.  C.  R.  740,  746, 
citing  a  large  number  of  cases  in  which  the  Commission  had  fixed 
reasonable  rates.  A  money  order  for  reparation  may  isstie 
against  a  receiver  of  a  carrier.  Loud  v.  South  Carolina  R.  Co., 
5  I.  C.  C.  529,  4  I.  C.  R.  205.  Rate  reduced,  but,  under  the  cir- 
cumstances of  the  case,  reparation  denied.  James  &  Abbott  v. 
Canadian  Pac.  R.  Co.,  5  I.  C.  C.  612,  4  I.  C.  R.  274,  283.  Rem- 
edy for  damages  caused  by  delay,  rotting,  or  other  deterioration, 
or  damage,  not  caused  by  a  violation  of  the  act  is  in  the  courts. 
Duncan  v.  A.  T.  &  S.  F.  R.  Co.,  6  I.  C.  C.  85,  4  I.  C.  R.  385. 
Each  carrier  participating  in  an  overcharge  is  liable  for  the 
amount  thereof,  and  when  an  association  complains  against  a 
rate,  each  of  its  members  at  the  time  of  the  hearing  is  entitled 
to  reparation.  Independent  Refiners'  Asso.  v.  Western  New 
York  &  Penn.  R.  Co.,  6  I.  C.  C.  378,  384.  Order  not  enforced. 
Western  New  York  &  Penn.  R.  Co.  v.  Penn.  Refining  Co.,  137 
Fed.  343.  A  supplemental  petition  praying  reparation  filed  two 
and  a  half  years  after  an  order  declaring  a  rate  illegal,  dismissed. 
Rice,  etc.  v.  Western  N.  Y.  &  Penn.  R.  Co.,  6  I.  C.  C.  455.  A 
discriminatory  rate,  though  itself  reasonable,  justifies  an  order 
of  reparation.  Board  of  Trade  of  Lynchburg  v.  Old  Dominion 
S.  S.  Co.,  6  L  C.  C.  632,  645.  Order  of  reparation  must  be  based 
on  evidence  that  rate  was  unreasonable  when  paid.     Grain  Ship- 


550  Acts  Regulating  Commerce,  [§  383. 

})ers'  Asso.  v.  111.  Cent.  R.  Co.,  8  I.  C.  C.  158.  Remedy  by  way 
of  damages  for  unlawful  rate  is  entirely  inadequate  and  incon- 
sistent. McGrew  v^  Mo.  Pac.  Ry.  Co.,  8  I.  C.  C.  630,  642.  Rates 
reduced  but  reparation  denied.  Johnson  v.  Chicago,  St.  P.  M. 
c<i'  O.  R.  Co.,  9  I.  C.  C.  221,  244.  Shipments  owned  by  several 
parties  may  be  made  under  one  bill  of  lading  in  the  name  of  one 
consignor  to  one  consignee  at  car  load  rates.  Buckeye  Buggy 
Co.  V.  Cleveland,  etc.,  Ry.  Co.,  9  I.  C.  C.  626;  California  Com. 
Asso.  v.  Wells  Fargo  Ex.  Co.,  14  I.  C.  C.  422 ;  Export  Shipping 
Co.  z'.  Wabash  R.  Co.,  14  I.  C.  C.  437.  Sections  constitutional, 
as  trial  by  jur}^  may  be  had  when  order  of  Commissions  sued  on. 
Cattle  Raisers'  Asso.  v.  Chicago,  Burlington  &  Q.  R.  Co.,  10  I. 
C.  C.  83.  The  measure  of  damages  is  the  difference  between 
what  should  have  been  paid  and  what  was  exacted.  Where  a 
shipper  pays  less  than  he  should  with  the  consent  of  the  carrier, 
the  carrier  can  not  recover  the  balance  of  the  lawful  rate.  Gard- 
ner V.  So.  Ry.  Co.,  10  I.  C.  C.  342,  350,  351.  When  complainants 
refused  to  buy  ties  because  of  a  failure  of  a  carrier  to  furnish 
cars,  they  could  recover  the  profit  they  would  have  made  had 
they  bought  the  ties  and  been  enabled  to  ship  them.  Paxton 
Tie  Co.  V.  Detroit  S.  R.  Co.,  10  I.  C.  C.  422,  426.  Such  failure 
to  furnish  cars  must  constitute  discrimination  and  the  proof  of 
damages  must  be  clear.  Richmond  Elevator  Co.  z\  Pere  Mar- 
quette R.  Co.,  10  I.  C.  C.  629,  636.  When  a  combination  of 
locals  was  less  than  the  through  rate  and  a  carrier  refused  to 
let  a  shipper  ship  so  as  to  use  the  two  locals,  the  shipper  could 
recover  reparation  on  all  local  shipments.  Hope  Cotton  Oil  Co. 
V.  Tex.  &  Pac.  Ry.  Co.,  10  I.  C.  C.  696.  Right  not  barred  by 
pending  suit  in  state  court,  otherwise  if  suit  was  pending  in  a 
federal  court.  Gallogly  v.  Cincinnati,  H.  &  D.  Ry.  Co.,  11  I.  C. 
C  1,  9.  After  decision  as  to  rate  retained  for  further  proceed- 
ings as  to  reparation.  Cattle  Raisers'  Asso.  v.  Chicago,  B.  & 
Q.  R.  Co.,  11  I.e.  C.  277.  Profits  may  be  recovered  for  discrim- 
ination, but  reparation  is  not  measured  by  the  probability  of 
profit.  Eaton  v.  Cincinnati,  H.  &  D.  Ry.  Co.,  11  I.  C.  C.  619, 
626.  Reparation  allowed  only  from  date  complainant  wrote  a 
letter  to  Commission  complaining  of  rate.  Texas  Cement 
Plaster  Co.  -c'.  St.  L.  &  S.  F.  R.  Co.^^  12  I.  C.  C.  68.  75.  Repara- 
tion for  breach  of  contract  for  a  privilege  not  in  the  tariff  can 
not  be  allowed.  Shiel  &  Co.  ?-.  111.  Cent.  R.  Co.,  12  I.  C.  C.  210. 
Claim  for  reparation  should  be  made  in  original  complaint.    Dal- 


§  383.]  Annotated.  551 

las  Freight  Bureau  v.  Gulf,  C.  &  S.  F.  Ry.  Co.,  12  I.  C.  C.  223. 
For  detriment  to  business  directly  and  proximately  resulting 
from  discrimination,  reparation  may  be  awarded.  Rogers  &  Co. 
V.  Philadelphia  &  R.  R.  Co.,  12  I.  C.  C.  308.  Can  not  recover 
because  a  rate  less  than  the  tariff  rate  is  quoted  and  relied  upon. 
Poor  V.  Chicago,  B.  &  Q.  R.  Co.,  12  I.  C.  C.  418,  423,  469.  Rep- 
aration does  not  follow  reduction  of  rate  as  a  matter  of  course. 
Farmers'  Warehouse  Co.  v.  L.  &  N.  R.  Co.,  12  I.  C.  C.  457. 
Paper  rate  not  a  basis  for  reparation.  Mo.  &  Kans.  Shippers' 
Assn.  V.  M.  K.  &  T.  Ry.  Co.,  12  I.  C.  C.  483.  The  mere  fact  that 
a  charge  is  discontinued  or  a  rate  reduced  will  not  require  the 
granting  of  reparation.  Leonard  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  12  I.  C.  C.  492.  Reparation  not  allowed  wdien  a  through 
rate  in  excess  of  the  locals  is  paid  on  a  through  shipment.  Morgan 
V.  M.  K.  &  T.  Ry.  Co.,  12  I.  C.  C.  525.  Shippers  by  reshipping 
m.ay  take  advantage  of  the  locals  less  than  the  through  rate. 
Laning-Harris  Coal  &  Grain  Co.  v.  Mo.  Pac.  Ry.  Co.,  13  I.  C.  C. 
154.  When  shippers  designate  the  route,  they  are  not  entitled  to 
reparation  because  there  was  a  cheaper  route.  Stedman  v.  Chicago 
&  N.  W.  Ry.  Co.,  13  I.  C.  C.  167;  William  Larsen  Canning  Co.  v. 
Chicago,  &  N.  W\  Ry.  Co.,  13  I.  C.  C.  286.  Though  a  shipper 
must  pay  the  rates  legally  established,  he  may  recover  the  excess 
over  a  reasonable  rate.  Coomes  v.  Chicago,  M.  &  St.  P.  Ry.  Co., 
13  I.  C.  C.  192.  Protest  when  paying  freight  unnecessary.  Baer 
Bros.  Mercantile  Co.  v.  Mo.  Pac' Ry.  Co.,  13  I.  C.  C.  329;  So. 
Pine  Lumber  Co.  v.  So.  Ry.  Co.,  14  L  C.  C.  195 ;  Nicola,  Stone 
&  Myers  Co.  v.  L.  &  N.  R.  Co.,  14  L  C.  C.  199.  Complaint 
in  name  of  an  association  not  naming  persons  in  whose  behalf 
it  is  filed  and  not  stating  with  reasonable  particularity  the  ship- 
ments on  which  reparation  is  sought  not  sufficient  to  stop  limitation. 
Missouri  &  Kansas  Shippers'  Asso.  v.  A.  T.  &  S.  F.  Ry.  Co.,  13 
I.  C.  C.  411.  Informal  written  presentation  of  claim  stops  limita- 
tion. Venus  V.  St.  L.,  I.  M.  &  S.  Ry.  Co.,  15  L  C.  C.  136.  Rep- 
aration allowed  only  from  date  of  filing  supplemental  petition. 
Cattle  Raisers'  Asso.  v.  M.  K.  &  T.  Ry.  Co.,  13  I.  C.  C.  418. 
Where  reduced  rates  have  been  received  because  of  irregularities, 
correction  of  such  no  ground  for  reparation.  Bannon  v.  So. 
Ex.  Co.,  13  I.  C.  C.  516.  Reparation  awarded  for  refusing  party 
rate  ticket  to  one  when  granted  to  others.  Koch  Secret  Service 
V.  L.  &  N.  R.  Co.,  13  L  C.  C.  523.  Reparation  awarded  for  ad- 
vancing a  rate  put  in  at  the  request  of  a  shipper  who  had  ad- 


552  Acts  Regulating  Commerce,  [§  383. 

justed  his  business  to  the  lower  rate.  New  Albany  Furniture  Co. 
V.  Mobile,  etc.  R.  Co.,  13  I.  C.  C.  594.  Commission  has  no  juris- 
diction to  award  damages  for  breach  of  contract.  La  Salle,  etc., 
R  Co.  V.  Chicago  &  N.  W.  R.  Co.,  13  I.  C.  C.  610.  Excess  rate 
paid  may  be  recovered  though  shipper  not  damaged.  Burgess 
V.  Transcontinental  Freight  Bureau,  13  I.  C.  C.  668.  Reparation 
allowed  only  from  date  of  filing  complaint,  id.  Voluntary  re- 
duction of  rate  not  conclusive  of  right  to  reparation  for  paying 
the  higher  rate.  Ottumwa  Bridge  Co.  v.  Chicago,  AI.  &  St.  P. 
Ry.  Co.,  14  I.  C.  C.  121.  The  true  owner  paying  the  excessive 
charge  can  alone  recover.  Manufacturers  selling  F.  O.  B.  their 
mills  can  not  recover.  Nicola,  Stone  &  Meyers  Co.  r.  L.  &  N. 
R.  Co.,  14  I.  C.  C.  199.  Mistake  in  quoting  rate  not  relieve 
shipper  from  paying  full  tariff  rate.  Foster  Bros.  Co.  v.  Duluth, 
etc.,  Ry.  Co.,  14  I.  C.  C.  232,  236.  Misrouting  at  the  highest 
rate  entitles  shipper  to  reparation.  McCaull-Dinsmore  Co.  v. 
Chicago  G.  W.  Ry.  Co.,  14  I.  C.  C.  527;  Cedar  Hill  Coal  &  Coke 
Co.  V.  Col.  So.  Ry.  Co.,  14  I.  C.  C.  606;  Gus.  Momsen  &  Co.  v. 
Gila  Valley,  etc.,  Ry.  Co.,  14  I.  C.  C.  614.  Reparation  allowed 
because  through  rate  exceeded  sum  of  locals.  ^Minneapolis 
Threshing  Mch.  Co.  z'.  Chicago,  M.  &  St.  P.  Ry.  Co.,  14  I.  C.  C. 
536;  Sylvester  v.  Penn.  R.  Co.,  14  I.  C.  C.  573;  Hardenberg,  D. 
&  G.  V.  N.  Pac.  Ry.  Co.,  14  I.  C.  C.  579.  In  allowing  reparation 
Commission  takes  no  account  of  fact  that  less  than  tariff'  rate  was 
paid  and  must  assume  that  full  rate  was  paid.  Wilson  z'.  Chi- 
cago, M.  &  St.  P.  Ry.  Co.,  14  I.  C.  C.  549,  550.  When  a  car 
of  particular  capacity  is  ordered  and  one  of  higher  capacity 
furnished,  rate  should  be  based  on  capacity  of  car  ordered.  Am. 
Lumber  &  Mfg.  Co.  v.  So.  Pac.  Co.,  14  I.  C.  C.  561.  Commis- 
sion no  authority  to  adjudicate  a  claim  against  a  shipper.  Lan- 
ing-Harris  Coar&  Grain  Co.  v.  St.  Louis  &  S.  F.  R.  Co.,  15  L  C. 
C.  27.  Reparation  not  awarded  in  this  case  where  carrier  vol- 
untarily reduced  rate.  Menefee  Lumber  Co.  r.  Tex.  &  Pac.  Ry. 
Co.,  15  I.  C.  C.  49.  Can  not  award  reparation  for  failure  to 
make  prompt  delivery.  Blume  &  Co.  z-.  Wells  Fargo  &  Co.,  15 
L  C.  C.  53,  55.  Commission  has  jurisdiction  regardless  of 
amount  in  controversy,  but  does  not  award  costs  or  attorney's 
fees.  Washer  Grain  Co.  v.  Mo.  Pac.  Ry.  Co.,  15  I.  C.  C.  147, 
151,  152.  Jurisdiction  to  award  damages  for  diverted  shipments. 
Woodward  &  Dickerson  v.  L.  &  N.  R.  Co.,  15  I.  C.  C.  170. 
Commission  may  authorize  a  compromise  of  a  claim  for  repara- 


§  383.]  Annotatijd.  553 

tion.  Joke  &  Co.  v.  111.  Cent.  R.  Co.,  15  I.  C.  C.  239;  Goff-Kirby 
Coal  Co.  V.  Bessemer  &  Lake  E.  R.  Co.,  15  I.  C.  C.  553.  No  ju- 
risdiction in  Commission  to  require  a  shipper  to  make  good  an 
undercharge.  Falls  &  Co.  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  15  I. 
C.  C.  269.  Should  claim  reparation  in  original  complaint  and  not 
wait  until  after  a  determination  of  the  question  of  the  validity 
of  a  rate.  Morse  Produce  Co.  v.  Chicago,  M.  &  St.  P.  Ry.  Co., 
15  I.  C.  C.  334.  Scope  of  sections  eight  and  nine  discussed,  hold- 
ing reparation  may  be  awarded  on  past  shipments.  Arkansas 
Fuel  Co.  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  16  I.  C.  C.  95,  98. 
Damages  for  loss  of  employment  to  speculative.  AUender  v. 
Chicago,  B.  &  Q.  R.  Co.,  16  I.  C.  C.  103.  An  association  may 
maintain  a  complaint  for  damages  to  its  members.  California 
Com.  Asso.  V.  Wells  Fargo  Ex.  Co.,  16  I.  C.  C.  458,  463.  In  a 
suit  for  damages  for  violating  the  fourth  section  brought  in  the 
United  States  circuit  court,  the  measure  of  damages  is  the  dif- 
ference between  the  amount  paid  for  the  shorter  haul  and  the 
charge  for  the  longer  haul ;  the  jury  may  allow  interest,  but  such 
interest  dates  from  last  payment.  Junod  v.  Chicago  &  N.  W. 
Ry.  Co.,  47  Fed.  290;  Osborne  v.  Chicago  &  N.  W.  Ry.  Co., 
48  Fed.  49.  Reversed  on  other  points.  Chicago  &  N. 
W.  Ry.  Co.  V.  Osborne,  and  same  v.  Junod,  52  Fed.  912,  3  C.  C. 
A.  347.  Writ  of  certiorari. refused  by  Supreme  Court.  146  U. 
S.  364,  36  L.  Ed.  1002;  see  also  Parsons  v.  Chicago  &  N.  W.  R. 
Co.,  167  U.  S.  447,  453,  42  L.  Ed.  231,  234.  Common  law  rem- 
edies for  extortion  are  superceded  by  a  statute  creating  a  Com- 
mission to  determine  the  question.  Winsor  Coal  Co.  v.  Chi- 
cago &  A.  R.  Co.,  52  Fed.  716,  referring  to  a  state  statute.  Right 
for  damages  to  exist  for  unlawfully  refusing  to  interchange  traf- 
fic. Toledo,  A.  A.  &  N.  M.  Ry.  Co.  v.  Penn.  Co.,  54  Fed.  730, 
740,  19  L.  R.  A.  387,  5  I.  C.  R.  545,  22  U.  S.  App.  561.  Can  not 
recover  for  a  violation  of  the  interstate  commerce  act  in  a  state 
court ;  there  is  no  common  law  of  the  United  States.  Swift  v. 
Philadelphia  &  R.  R.  Co.,  58  Fed.  858.  Same  doctrine  as  to  com- 
mon law  announced  same  case.  64  Fed.  59.  Contra.  Murray  v. 
Chicago  &  N.  Y.  Ry.  Co.,  62  Fed.  24.  Affirmed.  92  Fed.  868, 
35  C.  C.  A.  62,  and  Kinnavey  v.  Terminal  R.  Asso.,  81  Fed. 
802,  804.  See  as  to  common  law,  Western  Union  Telegraph  Co. 
V.  Call  Publishing  Co.,  181  U.  S.  92,  45  L.  Ed.  765,  21  Sup.  Ct. 
561,  where  Mr.  Justice  Brewer  says: 

"There  is  no  body  of  federal  common  law  separate  and  dis- 


554  Acts  Regulating  Commerce,  [§  383. 

tinct  from  the  common  law  existing  in  the  several  states,  in  the 
sense  that  there  is  a  body  of  statute  law  enacted  by  Congress 
separate  and  distinct  from  the  body  of  statute  law  enacted  by 
the  several  states.  But  it  is  an  entirely  different  thing  to  hold 
that  there  is  no  common  law  in  force  generally  throughout  the 
United  States,  and  that  the  countless  multitude  of  interstate 
commercial  transactions  are  subject  to  no  rules  and  burdened  by 
no  restrKtions  other  than  those  expressed  in  the  statutes  of 
Congress.  *  *  *  the  principles  of  the  common  law  are  op- 
erative upon  all  interstate  commercial  transactions,  except  so 
far  as  they  are  modified  by  congressional  enactment." 

A  joint  through  rate  is  not  the  basis  for  a  local  rate  in  a  suit 
for  discrimination.  Parsons  v.  Chicago  &  N.  W.  Ry.  Co.,  63  Fed. 
903.  Affirmed.  167  U.  S.  447,  42  L.  Ed.  231,  17  Sup.  Ct.  887. 
The  federal  courts  have  exclusive  jurisdiction  of  suits  brought 
under  sections  eight  and  nine.  Van  Patten  v.  Chicago,  M.  & 
St.  P.  R.  Co.,  74  Fed.  981.  And  suits  may  be  brought  in  any  dis- 
trict in  which  the  defendant  resides.  See  also  Connor  v.  Vicks- 
burg,  etc.,  R.  Co.,  36  Fed.  273,  1  L.  R.  A.  331.  The  rates  filed  and 
published  according  to  the  interstate  commerce  law  are  the  only 
legal  rates,  and  the  fact  that  such  rates  are  published  is  a  de- 
fense in  a  court  to  a  suit  for  damages  alleging  that  such  rates 
are  unreasonable.  Van  Patten  v.  Chicago,  M.  &  St.  P.  Ry.  Co., 
81  Fed.  545.  Rights  under  the  section  are  assignable.  Edmunds 
V.  111.  Cent.  R.  Co.,  80  Fed.  78.  What  a  petition  under  the  sec- 
tions for  violating  section  two  should  show  and  disagreeing  with 
the  Swift  case,  supra,  on  the  question  of  a  common  law  of  the 
United  States.  Kinnavey  v.  Terminal  R.  Asso.,  81  Fed.  802. 
There  must  be  an  active,  not  merely  a  threatened,  discrimination 
as  a  basis  for  a  suit  for  damages.  Lehigh  V.  R.  Co.  v.  Rainey, 
112  Fed.  487.  The  remedy  provided  by  these  sections  is  exclu- 
sive and  an  injunction  will  not  be  granted  to  compel  obedience 
to  section  three.  Central  Stock  Yards  Co.  v.  L.  &  N.  R.  Co., 
112  Fed.  823.  No  limitation  being  fixed  by  the  act,  the  law  of 
the  state  where  suit  is  brought  will  govern  in  that  particular. 
Ratican  v.  Terminal  R.  Asso.,  114  Fed.  666.  Contra.  Carter  v. 
New  Orleans  &  N.  E.  R.  Co.,  143  Fed.  99,  74  C.  C.  A.  293,  hold- 
ing that  R.  S.  U.  S.  §  1047  applies.  That  the  state  law  governs 
seems  to  be  the  law.  Chattanooga  Foundry  &  Pipe  Works  v. 
Atlanta,  203  U.  S.  390,  51  L.  Ed.  241,  27  Sup.  Ct.  65.  Opinion 
of  Commission  inadmissible  in  a  suit  to  enforce  its  order,  valid- 


§  383.]  Annotated.  555 

ity  of  its  order  rests  upon  the  existing  facts,  whether  disclosed  to 
the  Commission  or  not,  the  election  to  proceed  before  the  Com- 
mission bars  a  suit  before  the  courts,  no  appeal  is  allowed  from 
an  order  of  the  Commission  granting  or  refusing  reparation. 
Effect  of  the  order  when  suit  brought  thereon.  Western  N.  Y. 
&  Penn.  R.  Co.  v.  Penn.  Refining  Co.,  137  Fed.  343,  70  C.  C.  A. 
23.  Affirmed,  without  discussing  above  proposition.  Penn.  Re- 
fining Co.  V.  Western  N.  Y.  &  P.  R.  Co.,  208  U.  S.  208,  52 
L.  Ed.  456,  28  Sup.  Ct.  268. 

What  a  plaintiff  must  show  in  order  to  recover.  Knudsen- 
Ferguson  Fruit  Co.  v.  Mich.  Cent.  R.  Co.,  148  Fed.  968,  974. 
Petition  for  writ  of  certiorari  denied.  Must  be  protest  before  re- 
covery when  rate  duly  published.  Knudsen-Ferguson  Fruit  Co. 
V.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  149  Fed.  973,  79  C.  C.  A. 
483.  Petition  for  writ  of  certiorari  denied.  204  U.  S.  670,  51 
L  Ed.  672.  Carrier  may  be  compelled  to  produce  books  on  the 
trial  of  a  case  hereunder.  International  Coal  Mining  Co.  v. 
Penn.  R.  Co.,  152  Fed.  557.  When  trial  before  the  court,  the  re- 
port of  the  Commission  upon  which  the  action  is  based  may  be 
received  in  evidence.  Commission's  finding  prima  facie  true.  So. 
Ry.  Co.  V.  St.  Louis  Hay  &  Grain  Co.,  153  Fed.  728,  affirming 
149  Fed.  609.  Reversed  because  the  Commission  erred  in  the  law 
•applied  by  it  and  remanded  to  send  the  matter  back  to  the  Com- 
mission. 214  U.  S.  297,  53  L.  Ed.  1004,  29  Sup.  Ct.  678.  A 
'suit  for  damages  for  discrimination  not  alleging  that  the  charges 
are  not  in  accordance  with  the  published  schedules  is  not  one 
arising  under  the  interstate  commerce  law.  Clement  v.  L.  & 
N.  R.  Co.,  153  Fed.  979.  Can  recover  in  court  when  full  tariff 
rate  is  paid  and  a  less  rate  charged  plaintiffs  competitors,  but 
can  not  recover  when  only  the  tariff  rate  is  collected,  although 
such  rate  is  fixed  by  combination,  without  first  applying  to  the 
Commission.  American  Union  Coal  Co.  v.  Penn.  R.  Co.,  159  Fed. 
278.  When  a  bond  is  given  to  dissolve  an  injunction  against  a 
rate  subsequently  declared  unlawful,  persons  paying  the  illegal 
rate  may  intervene  and  participate  in  the  proceeds  to  be  collected 
upon  the  bond.  Tift  v.  So.  Ry.  Co.,  159  Fed.  555.  In  a  suit 
for  damages  in  a  circuit  court,  the  printed  and  published  rates 
are  legal  unless  declared  by  the  Commission  to  be  illegal. 
Meeker  v.  Lehigh  V.  R.  Co.,  162  Fed.  354.  Remedy  by  suit  or 
complaint  under  there  sections  inadequate.     Macon  Grocery  Co. 


556  Acts  Regulating  Commerce,  [§  383. 

t'.  Atlantic  C.  L.  R.  Co.,  163  Fed.  738.  Reversed.  Atlantic  C. 
L.  R.  Co.  v.  Macon  Grocery  Co.,  166  Fed.  206,  92  C.  C.  A.  114. 
Shipper  can  not  in  the  absence  of  a  statute  recover  for  discrim- 
ination if  he  has  paid  no  more  than  a  reasonable  rate,  and  when 
suit  is  brought  under  the  statute,  it  is  the  nature  of  a  suit  for  a 
penalty  and  plaintiff  must  clearly  and  distinctly  show  a  violation. 
Can  not  recover  for  failure  to  publish  a  tariff"  without  showing 
that  advantage  would  have  been  taken  of  the  tariff  if  it  had  been 
published.  Parsons  v.  Chicago  &  N.  W.  R.  Co.,  167  U.  S.  447, 
42  L.  Ed.  231,  17  Sup.  Ct.  887.  The  first  proposition  above 
quoted  appears  inconsistent  with  the  opinion  in  Western  Union 
Tel.  Co.  V.  Call  Printing  Co.,  181  U.  S.  92,  45  L.  Ed.  765,  21  Sup. 
Ct.  561,  supra.  A  shipper  can  not  recover  in  a  state  court  for 
having  paid  an  unreasonable  rate  prior  to  a  determination  by  the 
Interstate  Commerce  Commission  that  the  rate  paid  is  unreason- 
able. Tex..  &  Pac.  Ry.  Co.  v.  Abilene  Cotton  Oil  Co.,  204  U.  S. 
426,  51  L.  Ed.  553,  27  Sup.  Ct.  350.  The  court,  however,  is  not 
because  of  this  rule  required  to  say  that  a  suit  in  equity  to  pre- 
vent an  illegal  advance  is  also  forbidden.  So.  Ry.  Co.  v.  Tift, 
206  U.  S.  428,  51  L.  Ed.  1125,  27  Sup.  Ct.  709.  Commission's 
order  set  aside  and  the  facts  held  not  to  constitute  illegal  dis- 
crimination. Penn.  Refining  Co.  v.  Western  N.  Y.  &  P.  R.  Co., 
208  U.  S.  208,  52  L.  Ed.  456,  28  Sup.  Ct.  268.  Suit  for  damages  for 
a  violation  of  the  interstate  commerce  act  can  not  be  maintained 
in  a  state  court.  Fitzgerald  v.  Fitzgerald,  etc.,  Construction  Co., 
41  Neb.  374,  51  N.  W.  838;  Copp  v.  L.  &  N.  R.  Co.,  43  L.  Ann. 
511,  9  So.  441,  3  I.  C.  R.  625,  46  Am.  &  Eng.  R.  cases  634;  Gulf 
C.  &  S.  F.  R.  Ry.  Co.  V.  Moore,  98  Tex.  302,  83  S.  W.  363 ;  Wa- 
bash R.  Co.  V.  Sloop,  200  Mo.  198,  98  S.  W.  607.  But  may  main- 
tain a  suit  on  the  common  law  right  to  have  transportation  at 
reasonable  rates.  HoUiday  Milling  Co.  v.  Louisiana  &  N.  W.  R. 
Co.,  80  Ark.  536,  98  S.  W.  374.  Overcharges  on  an  interstate 
shipment  paid  prior  to  the  act  not  recoverable  in  a  state  court. 
Gatton  V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  95  Iowa  112,  63  N.  W. 
589,  28  L.  R.  A.  556,  5  I.  C.  R.  474.  A  judgment  for  an  unjust 
rate  voluntarily  paid  can  not  be  recovered.  Strough  v.  New 
York  C.  &  H.  R.  R.  Co.,  87  N.  Y.  Sup.  30,  92  App.  Div.  584.  Af- 
firmed. 181  N.  Y.  533,  73  N.  E.  1133.  May  sue  in  federal  court 
for  damages  caused  by  a  violation  of  section  2  without  prior  ac- 
tion by  the  Commission.  Lyne  v.  Delaware,  L.  &  W.  R.  Co.,  170 
Fed.  847. 


§  383.]  Annotated.  557 

Notes  of  Decisions  Rendered  Since  1909. 

The  Commission  may  award  damages.  Arkansas  Fuel  Co.  v. 
C.  M.  &  St.  P.  Ry.  Co.,  16  I.  C.  C.  95,  98  citing  cases.  Discussion 
of  section  and  cases  cited.  Hillsdale  Coal  &  Coke  Co.  v.  P.  R. 
Co.,  19  I.  C.  C.  356,  373.  The  Commission  Sustained.  P.  R.  Co. 
V.  Int..  Com.  Com.,  193  Fed.  81,  Op.  Com.  Ct.  No.  31,  p.  275. 
Damages  awarded  on  subsequent  hea.ring  for  discrimination. 
Hillsdale  Coal  &  Coke  Co.  v.  P.  R.  Co.,  23  I.  C.  C.  186.  This 
proceeding  involved  as  complainants  other  than  the  Hillsdale 
Coal  Co.  See  also,  as  to  measure  of  damages,  Hillsdale  Coal  & 
Coke  Co.  V.  P.  R.  Co.,  229  Penn.  61,  78  Atl.  28.  Statement  of 
items  of  damage  stands  like  a  bill  of  particulars  in  a  suit  at  law. 
Mountain  Ice  Co.  v.  D.  L.  &  W.  R.  R.  Co.,  21  I.  C.  C.  45,  49. 
Voluntary  reduction  of  a  rate  not  always  followed  by  an  allow- 
ance of  reparation.  Anadarko  Cotton  Oil  Co.  v.  A.  T.  &  S.  F. 
Ry.  Co.,  20  I.  C.  C.  43,  24  I.  C.  C.  327.  Reparation  awarded  on 
the  basis  of  another  proceeding.  Victor  Alfg.  Co.  i'.  S.  Ry.  Co., 
27  I.  C.  C.  661.  '  Damages  awarded  for  violation  of  Sec.  6. 
Larson  Lumber  Co.  v.  G.  N.  R.  Co.,  21  I.  C.  C.  474.  The 
fact  of  damage  as  well  as  the  amount  must  be  established. 
New  Orleans  Board  of  Trade  v.  111.  C.  R.  R.  Co.,  29  I.  C. 
C.  32,  discussing  the  general  question  and  citing  authori- 
ties. Reparation  does  not  always  follow  the  reduction  of  a  rate 
by  the  Commission.  Maier  &  Co.  v.  S.  P.  Co.,  29  I.  C.  C.  103, 
105,  and  Curry  &  Whyte  Co.  v.  D.  &  I.  R.  R..  30  I.  C.  C.  1.  14, 
and  cases  cited.  Form  stated  for  preparing  statement  of  dam- 
ages when  reparation  allowed.  Wallingford  v.  A.  T.  &  S.  F. 
Ry.  Co.,  30  I.  C.  C.  19,  21.  Mere  fact  of  payment  of  discrim- 
inating charges  not  sufficient  to  authorize  an  award  of  damages. 
Greenbaum  v.  L.  &  N.  R.  Co.,  30  I.  C.  C.  699.  Adding  freight 
to  price  does  not  alone  show  damage  to  purchaser.  Phoenix 
Printing  Co.  v.  M.  K.  &  T.  Ry.  Co.,  31  I.  C.  C.  289.  Violation 
of  Fourth  Section  not  alone  a  sufficient  basis  for  an  award  of 
damages.  Nix  &  Co.  v.  S.  Ry.  Co.,  31  I.  C.  C.  145,  150.  Dam- 
ages awarded  for  discrimination.  Worn  f.  B.  &  L.  R.  R.  Co., 
32  I.  C.  C.  58.  Xo  damages  awarded  for  failure  to  furnish  in- 
strumentalities to  heat  car.  Best  Co.  v.  G.  N.  R.  Co.,  33  I.  C. 
C.  1.  Damages  awarded  for  failure  to  grant  reconsignment. 
Rayner  &  Parker  v.  L.  &  N.  R.  Co.,  33  I.  C.  C.  595.  Damages 
for  breach  of  contract  not  within  jurisdiction  of  the  Commission. 
McArthur  P.ros.  Co.  v.  E.  P.  &  S.  W.  Co.,  34  I.  C.  C.  30.    13am- 


558  Acts  Regulating  Commerce,  [§  383. 

ages  for  failure  to  accord  transit.  Brenner  Lumber  Co.  v.  AI.  L. 
&  T.  R.  Co.,  34  I.  C.  C.  630.  Through  rate  exceeding  aggregate 
of  intermediate  rate,  damages  awarded.  McCaull-Dinsmore  Co. 
T.  M.  P.  Ry.  Co.,  35  I.  C.  C.  69.  Reparation  limited  to  pecuniary 
loss.  Penn.  R.  Co.  v.  International  Coal  Mining  Co.,  230  U.  S. 
184,  57  L.  Ed.  1446,  33  Sup.  Ct.  893,  reversing  same  styled  case, 
173  Fed.  1,  97  C.  C.  A.  383  and  discussing  the  question  at  some 
length.  !Must  be  prior  action  by  the  Commission,  when  question 
of  unjust  discrimination  is  for  determination.  United  States  v. 
Pacific  &  A.  Ry.  &  Xav.  Co.,  228  U.  S.  87,  57  L.  Ed.  742,  33  Sup. 
Ct.  443 ;  Alitchell  Coal  &  Coke  Co.  v.  P.  R.  Co.,  230  U.  S.  247, 
57  L.  Ed.  1472,  33  Sup.  Ct.  916;  modifying  same  styled  case,  183 
Fed.  908.  Robinson  v.  B.  &  O.  R.  Co.,  222  U.  S.  506,  56  L.  Ed. 
288,  32  Sup.  Ct.  114.  But  such  action  is  not  necessary  where 
the  discrimination  is  the  result  of  a  violation  of  a  legal  tariff. 
P.  R.  Co.  V.  International  Coal  :\Iining  Co.,  230  U.  S.  184,  57 
L.  Ed.  1446,  33  Sup.  Ct.  893  ;  American  Tie  and  Timber  Co.  v. 
K.  C.  Ry.  Co.,  175  Fed.  28,  defining  "lumber"  as  a  general  term. 
Reparation  may  be  ordered  by  the  Commission  without  fixing  a 
rate  for  the  future.  Baer  Bros.  ]\Iercantile  Co.  v.  Denver  &  R. 
G.  R.  Co.,  233  U.  S.  479,  58  L.  Ed.  1055,  34  Sup.  Ct.  641,  revers- 
ing Circuit  Court  of  Appeals  in  Denver  &  R.  G.  R.  Co.  v.  Baer 
Bros.  ^lercantile  Co.,  187  Fed.  485,  109  C.  C.  A.  337,  and  sus- 
taining the  order  of  the  Commission  in  Baer  Bros.  ]\Ier.  Co.  z'. 
M.  P.  Ry.  Co.,  17  I.  C.  C.  225.  Where  the  fact  that  a  tariff  is 
discriminating  has  been  determined  and  the  extent  of  the  dis- 
crimination found  by  the  Commission  the  courts  have  jurisdic- 
tion of  a  suit  for  damages  for  such  discrimination  although  the 
particular  plaintiff  was  not  before  the  Commission.  National 
Pole  Co.  V.  C.  &  ]\I.  O.  Ry.  Co.,  211  Fed.  65,  reversing  same 
styled  case,  200  Fed.  185.  Suit  on  an  order  of  reparation  may 
be  brought  in  the  district  of  the  residence  of  the  beneficiary  there- 
under. St.  L.  S.  W.  Ry.  Co.  V.  Samuels  &  Co.,  211  Fed.  588. 
See  order  of  Commission,  Samuels  &  Co.  v.  St.  L.  S.  W.  Ry. 
Co.,  20  I.  C.  C.  646.  For  an  extended  discussion  of  the  subject 
of  suits  on  reparation  orders  see  Lehigh  V.  R.  Co.  z'.  Clark,  207 
Fed.  717,  125  C.  C.  A.  235,  denying  the  right  to  recover  in  a 
suit  on  the  order  of  the  Commission  in  Naylor  &  Co.  v.  L.  \'.  R. 
Co.,  15  I.  C.  C.  9,  Unrep.  Opin.  168,  18  I.  C.  C.  624. 

Order  of  the  Commission  awarding  damages  prima  facie  cor- 
rect.   Limitation  statutes  discussed.    Meeker  v.  Lehigh  Valley  R. 


§  384.]  Annotated.  559 

Co.,  236  U.  S.  412.  434,  59  L.  Ed.  — ,  35  Sup.  Ct.  328,  337,  re- 
versing Lehigh  Valley  R.  Co.  v.  Meeker,  211  Fed.  785.  In  these 
cases  the  right  to  an  award  was  based  in  part  on  a  discrimination 
charge.  One  not  a  party  to  a  proceeding  before  the  Commission 
may  maintain  his  claim  for  an  award  of  damages  before  the 
Commission  or  the  courts.  Such  claim  when  not  filed  within 
two  years  from  the  date  of  the  accrual  of  the  action,  notwith- 
standing the  order  of  the  Commission  declaring  the  rates  un- 
reasonable, was  not  finally  sustained  by  the  courts  until  long 
afterwards.  Philips  Co.  v.  G.  T.  W.  R.  Co.,  236  U.  S.  662,  59 
L.  Ed.  — ,  35  Sup.  Ct.  444. 

An  amendment  including  claims  arising  since  the  filing  of  the 
original  complaint  may  be  allowed.  Lehigh  V.  R.  Co.  v.  Ameri- 
can Hay  Co.,  219  Fed.  539,  —  C.  C.  A.  — . 

Allegations  in  suit  on  an  order  of  the  Commission  held  suf- 
ficient. So.  Pac.  Co.  V.  Goldfield  Con.  Milling  Co.,  220  Fed. 
14,  —  C.  C.  A.  — . 

The  payment  of  freight  charges,  subsequently  found  by  the 
Interstate  Commerce  Commission  to  be  unreasonable  and  exces- 
sive, is  presumptive  evidence  of  damage  to  the  shipper  to  the 
extent  of  the  difference  between  the  rate  charged  and  a  reason- 
able rate,  and  such  presumption  can  be  overcome  only  by  definite 
proof,  not  resting  upon  uncertainty  or  conjecture,  negativing  the 
fact  or  the  amount  of  damage.  Darnell-Taenzer  Lumber  Co.  v. 
So.  Pac.  Co.,  221  Fed.  890,  —  C.  C.  A.  — . 

The  ascertainment  of  the  damages  occasioned  by  a  carrier's 
rules  as  to  car  distribution,  which  are  unduly  discriminatory,  is 
as  much  within  the  scope  of  the  Interstate  Commerce  Commis- 
sion's authority,  as  though  the  damages  were  due  to  the  exaction 
of  unreasonable  rates.  Penn.  R.  Co.  v.  Clark  Bros.  Coal  Min.  Co., 
238  U.  S.  456,  59  L.  Ed.  — ,  35  Sup.  Ct.  896,  reversing  same 
styled  case,  241  Pa.'  515,  88  Atl.  754.  See  Mills  v.  L.  V.  R.  Co., 
238  U.  S.  473,  59  L.  Ed.  — ,  35  Sup.  Ct.  888. 

§  384.  Penalties  for  Violation  of  the  Act. — That  any  com- 
mon carrier  subject  to  the  provisions  of  this  act,  or,  whenever 
such  common  carrier  is  a  corporation,  any  director  or  officer 
thereof,  or  any  receiver,  trustee,  lessee,  agent,  or  person  acting 
for  or  employed  by  such  corporation,  who,  alone  or  with  any 
other  corporation,  company,  person,  or  party,  shall  willfully  do  or 
cause  to  be  done,  or  shall  willfully  suffer  or  permit  to  be  done,  any 
act,  matter,  or  thing  in  this  act  prohibited  or  declared  to  be  unlaw- 


560  Acts  Regulating  Commerce,  [§  384. 

fill,  or  who  shall  aid  or  abet  therein,  or  shall  willfully  omit  or  fail 
to  ilo  any  act,  matter,  or  thing  in  this  act  required  to  be  done, 
or  shall  cause  or  willingly  suffer  or  permit  any  act,  matter,  or 
thing  so  directed  or  required  by  this  act  to  be  done  not  to  be  so 
done,  or  shall  aid  or  abet  any  such  omission  or  failure,  or  shall 
be  guilty  of  any  infraction  of  this  act  for  zvliich  no  penalty  is 
othenvise  provided,  or  who  shall  aid  or  abet  therein,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall,  upon  conviction 
thereof  in  any  district  court  of  the  United  States  within  the  ju- 
risdiction of  which  such  offense  was  committed,  be  subject  to  a 
fine  of  not  to  exceed  five  thousand  dollars  for  each  off'ense:  Pro- 
vided, That  if  the  off'ense  for  which  any  person  shall  be  con- 
victed as  aforesaid  shall  be  an  unlawful  discrimination  in  rates, 
fares,  or  charges  for  the  transportation  of  passengers  or  prop- 
erty, such  person  shall,  in  addition  to  the  fine  hereinbefore  pro- 
vided for,  be  liable  to  imprisonment  in  the  penitentiary  for  a 
term  of  not  exceeding  two  years,  or  both  such  fine  and  impris- 
onment, in  the  discretion  of  the  court. 

Section  10  of  the  original  act  with  the  proviso  added  by  the  act 
of  March  2,  1889  and  the  words  "for  which  no  penalty  is  other- 
wise provided"  added  the  act  of  June  18,  1910. 

The  Commission  has  no  power  to  enforce  penalties,  the  penal 
provisions  beirig  enforcible  only  in  the  courts.  Slater  v.  X. 
Pac.  R.  Co.,  2  I.  C.  C.  359,  2  I.  C.  R.  243.  Sufficient  to  show 
that  the  agent  charged  had  general  charge  of  a  freight  olffce  of 
the  carrier  violating  the  act.  United  States  v.  Tozer,  37  Fed. 
635,  39  Fed.  369.  Reversed.  Tozer  v.  United  States,  52  Fed. 
917.  A  corporation  can  not  be  convicted  of  a  crime  and  the  agent 
must  be  one  who  knowingly  aids  or  abets  the  violation  and  not 
a  mere  clerk.  United  States  v.  ]\Iich.  Cent.  R.  Co.,  43  Fed.  26. 
Corporations  not  criminally  liable.  Re  Pensley,  44  Fed.  271. 
But  see  under  act  1903  Re  Pooling  Freights,  115  Fed..  588.  The 
off'ense  is  committed  when  the  voucher  for  rebate  is  signed  and 
not  when  the  payment  is  made.  United  States  v.  Fowkes,  53 
Fed.  13,  3  C.  C.  A. '394.  An  agent  who  merely  collects  rates 
and  has  nothing  to  do  with  fixing  rates  is  not  indictable.  United 
States  V.  Mellen,  53  Fed.  229,  233.  Common  carrier  not  a  cor- 
poration indictable,  but  not  so  a  corporation.  Toledo,  A.  A.  & 
N.  M.  Ry.  Co.  V.  Penn.  Co.,  54  Fed.  730,  736,  19  L.  R.  A.  387, 
5  I.  C.  R.  545,  22  U.  S.  App.  561.  A  combination  to  defeat 
the  provisions  of   the  act  to   regulate  commerce   is   within  this 


§  385.]  Annotated.  561 

section.  Waterhouse  z'.  Comer,  35  Fed.  149,  157,  19  L.  R.  A.  403, 
1  Fed.  Anti-Trust  Dec.  119.  No  penalties  before  amendment  of 
1889.  United  States  v.  Howell,  56  Fed.  21.  The  receiver  of  a 
rebate  not  a  criminal  under  the  old  law.  United  States  v.  Han- 
ley,  71  Fed.  672.  What  shoidd  be  stated  in  an  indictment  for 
discrimination.  United  States  v.  DeCoursey,  82  Fed.  302.  An 
indictment  under  this  section  for  discrimination  in  failing  to 
furnish  switch  connections  must  allege  that  such  connection  is 
practicable.    United  States  r.  B.  &  O.  R.  Co.,  153  Fed.  997. 

"Carrier"  includes  express  Company.  United  States  v.  Adams 
Ex.  Co.,  229  U.  S.  381,  57  L.  Ed.  1237,  33  Sup.  Ct.  878. 

§  385.  Penalties  for  False  Billing:,  False  Classification, 
False  Weighing,  etc.,  by  Carriers. — Any  common  carrier, 
subject  to  the  provisions  of  this  act,  or  whenever  such  common 
carrier  is  a  corporation,  any  officer  or  agent  thereof,  or  any  per- 
son acting  for  or  employed  by  such  corporation,  who,  by  means 
of  false  billing,  false  classification,  false  weighing,  or  false  report 
of  weight,  or  by  any  other  device  or  means,  shall  knowingly  and 
willfully  assist,  or  shall  willingly  sutTer  or  permit,  any  person 
or  persons  to  obtain  transportation  for  property  at  less  than  the 
regular  rates  then  established  and  in  force  on  the  line  of  trans- 
portation of  such  common  carrier,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall,  upon  conviction  thereof  in  any  court 
of  the  United  States  of  competent  jurisdiction  within  the  dis- 
trict in  which  such  offense  was  committed,  be  subject  to  a  fine 
of  not  exceeding  five  thousand  dollars,  or  imprisonment  in  the 
penitentiary  for  a  term  of  not  exceeding  two  years,  or  both,  in 
the  discretion  of  the  court,  for  each  oft'ense. 

Paragraph  two,  section  ten,  of  act  as  amended  by  act  Afarch 
2,  1889. 

Necessity  for  this  enactment  suggested.  Re  Underbilling.  1 
I.  C.  C.  633,  1  I.  C.  R.  813,  820. 

Construed  in  connection  with  and  not  repealing  Elkins  Act. 
Nichols  &  Cox  Lumber  Co.  v.  United  States,  212  Fed.  588.  See 
also  notes  Sees.  371  to  374,  sitpra. 

§  386.  Penalties  against  Shippers  for  False  Billing,  etc. 
— Any,  person,  corporation,  or  company,  or  any  agent  or  officer 
thereof,  who  shall  deliver  property  for  transportation  to  any 
common  carrier  subject  to  the  provisions  of  this  act,  or  for  whom, 
as  consignor  or  consignee,  any  such  carrier  shall  transport  prop- 
erty,  who  shall   knowingly  and   willfully,   directly   or  indirectly, 


562  Acts  Regulating  Commerce,  [§  386. 

himself  or  by  employee,  agent,  officer,  or  otherwise,  by  false  bill- 
ing, false  classification,  false  weighing,  false  representation  of 
the  contents  of  the  package  or  the  substance  of  the  property,  false 
report  of  weight,  false  statement,  or  by  any  other  device  or 
means,  whether  with  or  without  the  consent  or  connivance  of 
the  carrier,  its  agent,  or  officer,  obtain  or  attempt  to  obtain  trans- 
portation for  such  property  at  less  than  the  regular  rates  then 
established  and  in  force  on  the  line  of  transportation ;  or  who 
shall  knowingly  and  willfully,  directly  or  indirectly,  himself  or 
by  employee,  agent,  officer,  or  otherwise,  by  false  statement  or 
representation  as  to  cost,  value,  nature,  or  extent  of  injury,  or  by 
the  use  of  any  false  bill,  bill  of  lading,  receipt,  voucher,  roll,  ac- 
count, claim,  certificate,  affidavit,  or  deposition,  knowing  the  same 
to  be  false,  fictitious,  or  fraudulent,  or  to  contain  any  false,  ficti- 
tious, or  fraudulent  statement  or  entry,  obtain  or  attempt  to 
obtain  any  allowance,  refund,  or  payment  for  damage  or  other- 
wise in  connection  with  or  growing  out  of  the  transportation  of 
or  agreement  to  transport  such  property,  whether  with  or  with- 
out the  consent  or  connivance  of  the  carrier,  whereby  the  com- 
pensation of  such  carrier  for  such  transportation,  either  before 
or  after  payment,  shall  in  fact  be  made  less  than  the  regular 
rates  then  established  and  in  force  on  the  line  of  transportation, 
shall  be  deemed  guilty  of  fraud,  which  is  hereby  declared  to  be  a 
misdemeanor,  and  shall,  upon  conviction  thereof  in  any  court 
of  the  United  States  of  competent  jurisdiction  within  the  district 
in  which  such  ofifense  was  wholly  or  in  part  committed,  be  sub- 
ject for  each  offense  to  a  fine  of  not  exceeding  five  thousand  dol- 
lars or  imprisonment  in  the  penitentiary'  for  a  term  of  not  ex- 
ceeding two  years,  or  both,  in  the  discretion  of  the  court :  Pro- 
vided, That  the  penalty  of  imprisonment  shall  not  apply  to  artifi- 
cial persons. 

Paragraph  3,  Sec.  10,  added  by  act  March  2nd,  1889,  and 
amended  by  Act  June  18,  1910.    The  amendment  of  1889  read: 

Any  person  and  any  officer  or  agent  of  any  corporation  or  com- 
pany who  shall  deliver  property  for  transportation  to  any  com- 
mon carrier,  subject  to  the  provisions  of  this  act,  or  for  whom  as 
consignor  or  consignee  any  such  carrier  shall  transport  property, 
who  shall  knowingly  and  willfully,  by  false  billing,  false  classifi- 
cation, false  weighing,  false  representation  of  the  contents  of 
the  package,  or  false  report  of  weight,  or  by  any  other  device 
or  means,  whether  with  or  without  the  consent  or  connivance  of 


§  387.]  Annotated.  563 

the  carrier,  its  agent  or  agents,  obtain  transportation  for  such 
property  at  less  than  the  regular  rates  then  established  and  in 
force  on  the  line  of  transportation,  shall  be  deemed  guilty  of 
fraud,  which  is  hereby  declared  to  be  a  misdemeanor,  and  shall, 
upon  conviction  thereof  in  any  court  of  the  United  States  of 
competent  jurisdiction  within  the  district  in  which  such  ofifense 
was  committed,  be  subject  for  each  ofifense  to  a  fine  of  not  ex- 
ceeding five  thousand  dollars  or  imprisonment  in  the  peniten- 
tiary for  a  term  of  not  exceeding  two  years,  or  both,  in  the  dis- 
cretion of  the  court. 

The  intention  if  the  act  was  to  protect  carriers  as  well  as  ship- 
pers. Page  V.  Delaware,  L.  &  W.  R.  Co.,  6  I.  C.  C.  148,  166, 
4  I.  C.  R.  525,  534.  Order  not  enforced.  Int.  Com.  Com.  v. 
Delaware,  L.  &  W.  R.  Co.,  64  Fed.  723.  The  purpose  of  the 
enactment  stated.  United  States  v.  Howell,  56  Fed.  21,  24.  A 
rebate  under  act  March  2,  1889,  is  not  illegal  unless  granted 
to  some  and  refused  to  others  in  like  situation.  United  States 
V.  Hanley,  71  Fed.  672.  Crime  is  committed  at  the  place  where 
the  consignor  obtains  the  false  billing.  Re  Belknap,  96  Fed. 
614;  Davis  v.  United  States,  104  Fed.  136,  43  C.  C.  A.  448. 

§  387.  Penalties  and  Damages  for  Inducing  Discrimina- 
tions.— If  any  such  person,  or  any  officer  or  agent  of  any  such 
corporation  or  company,  shall,  by  payment  of  money  or  any 
other  thing  of  value,  solicitation,  or  otherwise,  induce  or  attempt 
to  induce  any  common  carrier  subject  to  the  provisions  of  this 
act,  of  any  of  its  officers  or  agents,  to  discriminate  unjustly  in  his, 
its,  or  their  favor  as  against  any  other  consignor  or  consignee  in 
the  transportation  of  property,  or  shall  aid  or  abet  any  common 
carrier  in  any  such  unjust  discrimination,  such  person  or  such 
officer  or  agent  of  such  corporation  or  company  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall,  upon  conviction  thereof  in 
any  court  of  the  United  States  of  competent  jurisdiction  within 
the  district  in  which  such  ofifense  was  committed,  be  subject  to 
a  fine  of  not  exceeding  five  thousand  dollars,  or  imprisonment  in 
the  penitentiary  for  a  term  of  not  exceeding  two  years,  or  both, 
in  the  discretion  of  the  court,  for  each  ofifense ;  and  such  person, 
corporation,  or  company  shall  also,  together  with  said  common 
carrier,  be  liable,  jointly  or  severally,  in  any  action  to  be  brought 
by  any  consignor  or  consignee  discriminated  against  in  any  court 
of  the  United  States  of  competent  jurisdiction  for  all  damages 
caused  by  or  resulting  therefrom. 


564  Acts  Regulating  Commerce,  [§  388. 

Paragraph  4  of  Sec.  10  added  by  Act  ^larch  2,  1889  as 
amended  by  Act  June  18,  1910.  The  words  italicized  were 
added  by  the  Act  of  1910  and  the  words  "on  the  case"  were 
omitted  by  that  amendment. 

Paragraph  four  of  section  ten  added  by  act  Alarch  2,  1889. 

Cited,  Washer  Grain  Co.  v.  Mo.  Pac.  Ry.  Co.,  15  I.  C.  C.  147, 
152,  153.  What  should  be  stated  in  an  indictment.  United  States 
V.  Hanley,  71  Fed.  672. 

§  388.  Appointment  and  Term  of  Office  of  Commis- 
sioner.— That  a  Commission  is  hereby  created  and  established 
to  be  known  as  the  Interstate  Commerce  Commission,  which  shall 
be  composed  of  seven  Commissioners,  who  shall  be  appointed 
by  the  President,  by  and  with  the  advice  and  consent  of  the 
Senate.  The  Commissioners  first  appointed  under  this  Act  shall 
continue  in  office  for  the  term  of  two,  three,  four,  five,  and  six 
years,  respectively,  from  the  first  day  of  January,  Anno  Domini 
eighteen  hundred  and  eighty-seven,  the  term,  of  each  to  be 
designated  by  the  President ;  but  their  successors  shall  be  ap- 
pointed for  terms  of  six  years,  except  that  any  person  chosen  to 
fill  a  vacancy  shall  be  appointed  only  for  the  unexpired  time  of 
the  Commissioner  whom  he  shall  succeed.  Any  Commissioner 
may  be  removed  by  the  President  for  inefficiency,  neglect  of  duty, 
or  malfeasance  in  office.  Not  more  than  four  of  the  Commis- 
sioners shall  be  appointed  from  the  same  political  party.  No 
person  in  the  employ  of  or  holding  any  official  relation  to  any 
common  carrier  subject  to  the  provisions  of  this  Act,  or  owning 
stock  or  bonds  thereof,  or  who  is  in  any  manner  pecuniarily  inter- 
ested therein,  shall  enter  upon  the  duties  of  or  hold  such  office. 
Said  Commissioners  shall  not  engage  in  any  other  business,  vo- 
cation, or  employment.  No  vacancy  in  the  Commission  shall  im- 
pair the  right  of  the  remaining  Commissioners  to  exercise  all  the 
powers  of  the  Commission. 

Section  eleven  of  original  act,  except  as  will  appear  from  sec- 
tion twenty-four  added  by  the  act  of  June  29,  1906,  the  number 
of  commissioners  were  increased  from  five  to  seven,  and  this  sec- 
tion has  consequently  been  copied  to  conform  to  the  provisions  of 
section  twenty- four. 

The  commission  is  a  body  corporate,  with  power  to  sue  and 
be  sued.  Int.  Com.  Com.  v.  B.  &  O.  R.  Co.,  145  U.  S.  263,  36 
L.  Ed.  699,  12  Sup.  Ct.  844;  Int.  Com.  Com.  v.  A.  T.  &  S.  F.  Ry. 
Co.,  149  U.  S.  264,  2>7  L.  Ed.  727,  U  Sup.  Ct.  ^Z7 ;  Tex.  &  Pac. 


§  389.]  Annotated.  565 

R.  Co.  V.  Int.  Com.  Com.,  162  U.  S.  197,  40  L.  Ed.  940,  16  Sup. 
Ct.  666. 

§  389.  Power  and  Duty  of  Commissioners. — That  the 
Commission  hereby  created  shall  have  authority  to  inquire  into 
the  management  of  the  business  of  all  common  carriers  subject 
to  the  provisions  of  this  act,  and  shall  keep  itself  informed  as  to 
the  manner  and  method  in  which  the  same  is  conducted,  and  shall 
have  the  right  to  obtain  from  such  common  carriers  full  and  com- 
plete information  necessary  to  enable  the  Commission  to  perform 
the  duties  and  carry  out  the  objects  for  which  it  was  created; 
and  the  Commission  is  hereby  authorized  and  required  to  exe- 
cute and  enforce  the  provisions  of  this  act;  and,  upon  the  re- 
quest of  the  Commission,  it  shall  be  the  duty  of  any  district  at- 
torney of  the  United  States  to  whom  the  Commission  may  apply 
to  institute  in  the  proper  court  and  to  prosecute  under  the  di- 
rection of  the  Attorney-General  of  the  United  Stales  all  neces- 
sary proceedings  for  the  enforcement  of  the  provisions  of  this 
act  and  for  the  punishment  of  all  violations  thereof,  and  the 
costs  and  expenses  of  such  prosecution  shall  be  paid  out  of  the 
appropriation  for  the  expenses  of  the  courts  of  the  United  States ; 
and  for  the  purposes  of  this  act  the  Commission  shall  have  power 
to  require,  by  subpoena,  the  attendance  and  testimony  of  wit- 
nesses and  the  production  of  all  books,  papers,  tariffs,  contracts, 
agreements,  and  documents  relating  to  any  matter  under  investi- 
gation. 

Such  attendance  of  witnesses,  and  the  production  of  such  doc- 
umentary evidence,  may  be  required  from  any  place  in  the 
United  States,  at  any  designated  place  of  hearing.  And  in  case 
of  disobedience  to  a  subpoena  the  Commission,  or  any  party  to  a 
proceeding  before  the  Commission,  may  invoke  the  aid  of  any 
court  of  the  United  States  in  requiring  the  attendance  and  testi- 
mony of  witnesses  and  the  production  of  books,  papers,  and  doc- 
uments under  the  provisions  of  this  section. 

First  two  paragraphs  of  section  twelve  as  enacted  by  act  of 
February  10,  1891,  enlarging  somewhat  the  original  act  and  the 
amendment  of  March  2,  1889. 

The  original  act  covering  this  section  read : 

"That  the  Commission  hereby  created  shall  have  authority  to 
in(|uire  into  the  management  of  the  business  of  all  common  car- 
riers subject  to  the  provisions  of  this  act,  and  shall  keep  itself 
informed  as  to  the  manner  and  method  in   which  the  same  is 


566  Acts  Regulating  Commerce,  [§  389. 

conducted,  and  shall  have  the  right  to  obtain  from  such  common 
carriers  full  and  complete  information  necessary  to  enable  the 
Commission  to  perform  the  duties  and  carry  out  the  objects  for 
which  it  was  created ;  and  for  the  purposes  of  this  act  the  Com- 
mission shall  have  power  to  require  the  attendance  and  testi- 
mony of  witnesses  and  the  production  of  all  books,  papers,  tar- 
iffs, contracts,  agreements,  and  documents  relating  to  any  matter 
under  investigation,  and  to  that  end  may  invoke  the  aid  of  any 
court  of  the  United  States  in  requiring  the  attendance  and  tes- 
timony of  witnesses  and  the  production  of  books,  papers,  and 
documents  under  the  provisions  of  this  section." 
The  act  of  1889  is  as  follows : 

"That  the  Commission  hereby  created  shall  have  authority  to 
inquire  into  the  management  of  the  business  of  all  common  car- 
riers subject  to  the  provisions  of  this  act,  and  shall  keep  itself 
informed  as  to  the  manner  and  method  in  which  the  same  is 
conducted,  and  shall  have  the  right  to  obtain  from  such  com- 
mon carriers  full  and  complete  information  necessary  to  enable 
the  Commission  to  perform  the  duties  and  carry  out  the  ob- 
jects for  which  it  was  created ;  and  the  Commission  is  hereby 
authorized  and  required  to  execute  and  enforce  the  provisions 
of  this  act;  and,  upon  the  request  of  the  Commission,  it  shall  be 
the  duty  of  any  district  attorney  of  the  United  States  to  whom 
the  Commission  may  apply  to  institute  in  the  proper  court  and 
to  prosecute,  under  the  direction  of  the  Attorney-General  of  the 
United  States,  all  necessary  proceedings  for  the  enforcement  of 
the  provisions  of  this  act,  and  for  the  punishment  of  all  viola- 
tions thereof ;  and  the  costs  and  expenses  of  such  prosecution 
shall  be  paid  out  of  the  appropriation  for  the  expenses  of  the 
courts  of  the  United  States;  and  for  the  purposes  of  this  act  the 
Commission  shall  have  the  power  to  require,  by  subpoena,  the  at- 
tendance and  testimony  of  witnesses  and  the  production  of  all 
books,  papers,  tariffs,  contracts,  agreements,  and  documents  re- 
lating to  any  matter  under  investigation,  and  in  case  of  diso- 
bedience to  a  subpoena,  the  Commission,  or  any  party  to  a  pro- 
ceeding before  the  Commission,  may  invoke  the  aid  of  any  court 
of  the  United  States  in  requiring  the  attendance  and  testimony 
of  witnesses  and  the  production  of  books,  papers,  and  documents 
under  the  provisions  of  this  section." 

Practice  for  complainant  to  obtain  production  of  books.     Rice 
V.  Cincinnati,  W.  &  B.  R.  Co.,  3  I.  C.  C.  186,  2  I.  C.  R.  584, 


§  389.]  Annotated.  567 

594.  Application  to  require  production  of  the  papers  of  third 
persons  not  before  the  Commission  denied.  Haddock  v.  Dela- 
ware, L.  &  W.  R.  Co.,  4  I.  C.  C.  296,  3  I.  C.  R.  302.  The  Com- 
mission is  vested  with  only  administrative  powers,  which  fall 
far  short  of  making  it  a  court.  Kentucky  &  I.  Bridge  Co.  v.  L. 
&  N.  R.  Co.,  37  Fed.  567,  612,  613.  The  Interstate  Com- 
merce Commission  is  an  administrative  body  and  the  act  au- 
thorizing the  courts  to  aid  the  Commission  with  process  to  com- 
pel a  response  to  the  subpoena  of  the  Commission  is  unconstitu- 
tional. Re  Interstate  Commerce  Commission,  Application  for 
Order  Against  Brimson  et  al,  53  Fed.  476,  481.  Reversed, 
holding  section  constitutional.  Int.  Com.  Com.  v.  Brimson,  154 
U.  S.  477,  38  L.  Ed.  1047,  14  Sup.  Ct.  1125.  Bill  in  equity  filed 
in  name  of  Commission,  its  duties  stated.  Int.  Com.  Com.  v. 
Detroit,  G.  H.  &  M.  Ry.  Co.,  57  Fed.  1005,  4  I.  C.  R.  722.  Re- 
versed. 74  Fed.  803,  21  C.  C.  A.  103,  43  U.  S.  App.  308,  167 
U.  S.  633,  42  L.  Ed.  306,  17  Sup.  Ct.  986.  Not  necessary  in 
suits  to  enforce  the  orders  of  the  Commission  to  file  the  testi- 
mony taken  before  it,  but  when  such  testimony  was  taken  on 
notice,  it  may  be  offered  by  either  party.  Int.  Com.  Com.  v. 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  64  Fed.  981,  13  U.  S.  App.  700. 
But  the  mere  opinion  of  the  Commission  is  not  admissible  as 
evidence.  Western  N.  Y.  &  P.  R.  Co.  v.  Penn  Refining  Co.,  137 
Fed.  343,  70  C.  C.  A.  23.  Affirmed.  Penn  Refining  Co.  v.  West- 
ern N.  Y.  &  P.  R.  Co.,  208  U.  S.  208,  52  L.  Ed.  456,  28  Sup.  Ct. 
268.  Proceedings  in  the  name  of  the  United  States  are  author- 
ized by  this  section  without  a  preliminary  investigation  by  the 
Commission.  United  States  v.  Mo.  Pac.  Ry.  Co.,  65  Fed.  903. 
Reversed.  Mo.  Pac.  Ry.  Co.  v.  United  States,  189  U.  S.  274,  47 
L.  Ed.  811,  23  Sup.  Ct.  507.  Suit  brought  by  authority  of  sec- 
tion. United  States  v.  Joint  Traffic  Asso.,  76  Fed.  895,  1  Fed. 
Anti-Trust  Dec.  615.  Affirmed.  Circuit  Court  Appeals,  89  Fed. 
1020,  32  C.  C.  A.  491,  45  U.  S.  App.  726,  1  Fed.  Anti-Trust  Dec. 
869.  See  decision  of  Supreme  Court,  post,  this  section.  Section 
quoted  in  discussing  the  refusal  of  a  witness  to  answer  in  an  in- 
vestigation by  a  grand  jury  of  violations  of  the  act.  Counselman 
V.  Hitchcock,  142  U.  S.  547,  35  L.  Ed.  1110,  1113,  12  Sup.  Ct. 
195.  After  this  decision  the  immunity  act  of  February  11,  1893, 
was  passed.  Section  twelve  is  constitutional.  Int.  Com.  Com.  v. 
Brimson,  154  U.  S.  447,  38  L.  Ed.  1047,  14  Sup.  Ct.  1125;  Int. 
Com.  Com.  v.  Baird,  194  U.  S.  25,  48  L.  Ed.  860,  24  Sup.  Ct.  563. 


568  Acts  Regulating  Commerce,  [§  389. 

Upon  an  inquiry  by  the  Commission,  carriers  should  not  with- 
hold their  evidence  and  present  it  later  before  the  court  on  a  suit 
to  enforce  the  order  of  the  Commission.  Cincinnati,  N.  O.  &  T. 
P.  Ry.  Co.  V.  Int.  Com.  Com.,  162  U.  S.  184,  40  L.  Ed.  935.  16 
Sup.  Ct.  700.  The  Commission  may  be  a  party  plaintifit  or  de- 
fendant. Tex.  &  Pac.  Ry.  Co.  v.  Int.  Com.  Com.,  162  U.  S. 
197,  40  L.  Ed.  940,  16  Sup.  Ct.  666.  A  suit  to  enjoin  a  carrier 
from  violating  the  act  to  regulate  com/merce  could  not  be  brought 
by  the  United  States  at  the  request  of  the  Commission  prior  to 
the  act  of  February  19,  1903.  ^NIo.  Pac.  Ry.  Co.  v.  United  States, 
189  U.  S.  274,  47  Fed.  811,  23  Sup.  Ct.  507.  Prior  to  the  Hep- 
burn Act  the  Commission  had  no  power  to  fix  rates.  Int.  Com. 
Com.  V.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  167  U.  S.  479,  42  L. 
Ed.  243,  17  Sup.  Ct.  896.  This  case  was  subsequently  followed 
by  other  cases  citing  the  principal  case.  Nor  did  the  Commis- 
sion have  power  to  fix  joint  through  routes.  Int.  Com.  Com.  v. 
Western  of  A.  R.  Co.,  93  Fed.  83,  35  C.  C.  A.  217,  181  U.  S. 
29,  45  L.  Ed.  729,  21  Sup.  Ct.  512.  See  also  Ky.  &  I.  B.  Co.  v. 
L.  &  N.  R.  Co.,  37  Fed.  567,  2  I.  C.  R.  351 ;  Little  Rock  &  M.  R. 
Co.  V.  St.  Louis  &  S.  W.  R.  Co.,  41  Fed.  559;  Little  Rock  &  M. 
R.  Co.  V.  East  Tenn.,  Va.  &  Ga.  Ry.  Co.,  47  Fed.  771  ;  Chicago  & 
N.  W.  Ry.  Co.  V.  Osborne,  52  Fed.  912,  3  C.  C.  A.  347,  10  U.  S. 
App.  430;  Union  P.  R.  Co.  v.  United  States,  117  U.  S.  355,  29  L. 
Ed.  920,  6  Sup.  Ct.  772.  The  Commission  an  administrative  body. 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Int.  Com.  Com.,  162  U.  S. 
184,  40  L.  Ed.  935,  16  Sup.  Ct.  700.  The  powers  exercised  by 
the  Commission  being  analogous  to  a  referee  or  special  com- 
missioner. Ky.  &  I.  Bridge  Co.  v.  L.  &  N.  R.  Co.,  37  Fed.  567. 
Its  powers  are,  however,  quasi  judicial.  Int.  Com.  Com.  v.  Cin- 
cinnati, N.  O.  &  T.  P.  R.  Co.,  167  U.  S.  479,  42  L.  Ed.  243,  17 
Sup.  Ct.  896.  Can  not  require  the  attendance  of  witnesses  ex- 
cept on  complaints  or  on  investigations  of  subjects  that  migiit 
become  the  basis  of  a  complaint.  Harriman  v.  Int.  Com.  Com., 
211  U.  S.  407,  53  L.  Ed.  253,  29  Sup.  Ct.  115. 

Notes  of  Decisions  Rendered  Since  1909. 
Qucere,  Can  papers  ordinarily  held  to  be  privileged  be  required 
to  be  produced?  United  States  v.  L.  &  N.  R.  Co.,  212  Fed.  486, 
494.  The  Commission  has  no  jurisdiction  to  require  a  carrier  to 
submit  its  correspondence  for  inspection.  U.  S.  v.  L.  &  N.  R. 
Co.,  236  U.  S.  318,  59  L.  Ed.—,  35  Sup.  Ct.  363.      The  Com- 


§  390.]  Annotated.  569 

mission  can  not  inquire  into  the  affairs  of  a  stranger  to  an  inves- 
tigation. Ellis  r.  Int.  Com.  Com.,  237  U.  S.  434,  59  L.  Ed.—, 
35  Sup.  Ct.  645. 

§  390.  Power  of  Courts  to  Punish  for  Disobedience, 
Witnesses  Not  Excused  because  Testimony  May  Incrim- 
inate.— And  any  of  the  circuit  courts  of  the  United  States 
within  the  jurisdiction  of  which  such  inquiry  is  carried  on  may, 
in  case  of  contumacy  or  refusal  to  obey  a  subpoena  issued  to  any 
common  carrier  subject  to  the  provisions  of  this  act,  or  other 
person,  issue  an  order  rec^uiring  such  common  carrier  or  other 
person  to  appear  before  said  commission  and  produce  books  and 
papers  if  so  ordered  and  give  evidence  touching  the  matter  in 
question ;  and  any  failure  to  obey  such  order  of  the  court  may  be 
punished  by  such  court  as  a  contempt  thereof.  The  claim  that 
any  such  testimony  or  evidence  may  tend  to  criminate  the  person 
giving  such  evidence  shall  not  excuse  such  witness  from  testify- 
ing; but  such  evidence  or  testimony  shall  not  be  used  against 
such  person  on  the  trial  of  any  criminal  proceeding. 

Paragraph  three  of  section  twelve,  being  paragraph  two  of 
said  section  in  original  act.  See  immunity  act,  act  February  11, 
1893,  post,  §  457. 

An  officer  of  a  carrier,  not  himself  incriminated  by  the  docu- 
ments, must  respond  to  a  notice  to  produce.  Re  Peasley,  44  Fed. 
271.  Provision  giving  court  power  to  punish  disobedience  to  the 
subpoena  of  the  Commission  unconstitutional.  Re  Interstate  Com- 
merce Commission  Application  for  Order  Against  W.  G.  Brim- 
son  et  al.,  53  Fed.  476,  481.  Reversed,  holding  section  valid. 
Int.  Com.  Com.  v.  Brimson,  154  U.  S.  447,  38  L.  Ed.  1047,  14 
Sup.  Ct.  1125.  The  Commission  has  plenary  power  to  institute 
an  investigation  into  any  matter  within  its  jurisdiction,  and  on 
such  investigation  to  require  the  attendance  of  witnesses  and  the 
production  of.  papers.  Int.  Com.  Com.  v.  Harriman,  157  Fed. 
432.  Reversed  in  part,  holding  that  testimony  could  only  be  re- 
quired in  connection  with  complaints  or  upon  the  investigation 
of  subjects  that  might  be  made  the  object  of  a  complaint.  Har- 
riman V.  Int.  Com.  Com.,  211  U.  S.  407,  53  L.  Ed.  253,  29  Sup. 
Ct.  115.     See  also  United  States  v.  Skinner,  218  Fed.  870. 

§  391.  Right  to  Take  Testimony  by  Deposition  and  the 
Manner  Thereof  Prescribed. — The  testimony  of  any  witness 
may  be  taken,  at  the  instance  of  a  party  in  any  proceeding  or 
investigation  depending  before  the  Commission,  by  deposition,  at 


570  Acts  Regulating  Commerce,  [§  391. 

any  time  after  a  cause  or  proceeding  is  at  issue  on  petition  and 
answer.  The  Commission  may  also  order  testimony  to  be  taken 
by  deposition  in  any  proceeding  or  investigation  pending  before 
it,  at  any  stage  of  such  proceeding  or  investigation.  Such  depo- 
sitions may  be  taken  before  any  judge  of  any  court  of  the  United 
States,  or  any  commissioner  of  a  circuit,  or  any  clerk  of  a  dis- 
trict or  circuit  court,  or  any  chancellor,  justice,  or  judge  of  a  su- 
preme or  superior  court,  mayor  or  chief  magistrate  of  a  city, 
judge  of  a  county  court,  or  court  of  common  pleas  of  any  of  the 
United  States,  or  any  notary  public,  not  being  of  counsel  or  at- 
torney to  either  of  the  parties,  nor  interested  in  the  event  of  the 
proceeding  or  investigation.  Reasonable  notice  must  first  be 
given  in  writing  by  the  party,  or  his  attorney,  proposing  to  take 
such  deposition  to  the  opposite  party  or  his  attorney  of  record,  as 
either  may  be  nearest,  which  notice  shall  state  the  name  of  the 
witness  and  the  time  and  place  of  the  taking  of  his  deposition. 
Any  person  may  be  compelled  to  appear  and  depose,  and  to  pro- 
duce documentary  evidence,  in  the  same  manner  as  witnesses 
may  be  compelled  to  appear  and  testify  and  produce  documen- 
tary evidence  before  the  Commission  as  hereinbefore  provided. 

Every  person  deposing  as  herein  provided  shall  be  cautioned 
and  sworn,  or  affirm,  if  he  so  request,  to  testify  the  whole  truth, 
and  shall  be  carefully  examined.  His  testimony  shall  be  re- 
duced to  writing  by  the  magistrate  taking  the  deposition,  or 
under  his  direction,  and  shall,  after  it  has  been  reduced  to  writ- 
ing, be  subscribed  by  the  deponent. 

If  a  witness  whose  testimony  may  be  desired  to  be  taken  by 
deposition  be  in  a  foreign  country,  the  deposition  may  be  taken 
before  an  officer  or  person  designated  by  the  Commission,  or 
agreed  upon  by  the  parties  by  stipulation  in  writing  to  be  filed 
with  the  Commission.  All  depositions  must  be  promptly  filed 
with  the  Commission. 

Witnesses  whose  depositions  are  taken  pursuant  to  this  act, 
and  the  magistrate  or  other  officer  taking  the  same,  shall  sev- 
erally be  entitled  to  the  same  fees  as  are  paid  for  like  services  in 
the  courts  of  the  United  States. 

Last  paragraphs  of  section  twelve,  added  by  the  act  of  Feb- 
ruary 10,  1891. 

See  rule  six  of  Rules  of  Practice,  ante.  Sec.  278.  Section  re- 
ferred to.  Foster  Bros.  Co.  v.  Duluth,  etc.,  R.  Co..  14  I.  C.  C.  R. 
232. 


§  392.]  Annotated.  571 

§  392.  Persons  Who  May  File  Complaints  with  the  Com- 
mission and  Practice  with  Reference  Thereto. — That  any 
person,  firm,  corporation,  company,  or  association,  or  any  mer- 
cantile, agricultural,  or  manufacturing  society  or  other  organi- 
sation, or  body  politic  or  municipal  organization,  or  any  com- 
mon carrier,  complaining  of  anything  done  or  omitted  to  be  done 
by  any  common  carrier  subject  to  the  provisions  of  this  act,  in 
contravention  of  the  provisions  thereof,  may  apply  to  said  Com- 
mission by  petition,  which  shall  briefly  state  the  facts ;  whereupon 
a  statement  of  the  (charges)  complaint  thus  made  shall  be  for- 
warded by  the  Commission  to  such  common  carrier,  who  shall  be 
called  upon  to  satisfy  the  complaint,  or  to  answer  the  same  in  writ- 
ing, within  a  reasonable  time,  to  be  specified  by  the  Commission. 
If  such  common  carrier  within  the  time  specified  shall  make  repa- 
ration for  the  injury  alleged  to  have  been  done,  the  (said)  com- 
mon carrier  shall  be  relieved  of  liability  to  the  complainant  only 
for  the  particular  violation  of  law  thus  complained  of.  If  such 
carrier  or  carriers  shall  not  satisfy  the  complaint  within  the  time 
specified,  or  there  shall  appear  to  be  any  reasonable  ground  for 
investigating  said  complaint,  it  shall  be  the  duty  of  the  Commis- 
sion to  investigate  the  matters  complained  of  in  such  manner 
and  by  such  means  as  it  shall  deem  proper. 

Section  13  of  the  original  act  as  amended  by  the  Act  of  June 
18,  1910.  The  words  italicized  were  added  by  the  amendment. 
The  words  in  brackets  were  in  the  original  act  and  omitted  from 
the  amendment. 

Complaint  of  a  violation  of  the  act  should  be  made  and  not  a 
mere  request  for  a  construction  of  the  law.  Re  Petition  of  Or- 
der of  Railway  Conductors,  1  I.  C.  C.  8,  1  I.  C.  R.  18;  Penn. 
Co.  V.  Louisville,  N.  A.  &  C.  R.  Co.,  3  I.  C.  C.  223,  2  I.  C.  R.  603. 
When  no  overt  act  in  violation  of  the  law  is  charged,  complaint 
will  be  dismissed.  Holbrook  v.  St.  Paul,  M.  &  M.  R.  Co.,  1  I. 
C.  C.  102,  1  I.  C.  R.  323.  No  replication  to  answer  required. 
Powers  and  Procedure  of  the  Commission,  1  I.  C.  C.  223,  1  I.  C. 
R.  408,  410;  Oregon  Short  Line  v.  N.  Pac.  R.  Co.,  3  I.  C.  C. 
264,  2  I.  C.  R.  639.  Vermont  State  Grange  could  intervene  and 
complain  against  charges  on  east  bound  freight,  though  original 
complaint  referred  only  to  west  bound  freight.  Boston  &  A.  R. 
Co.  V.  Boston  &  L.  R.  Co.,  1  I.  C.  C.  158,  1  I.  C.  R.  500,  571. 
Where  answer  denies  complaint  and  complainant  fails  to  appear, 
complaint  dismissed.     Jackson  v.  St.  Louis,  A.  &  T.  R.  Co.,  1  I. 


}^72  Acts  Regulating  Commerce,  [§  392. 

C.  R.  599.  New  grievances  can  not  be  set  up  in  an  amendment. 
Riddle,  Dean  &  Co.  v.  B.  &  O.  R.  Co.,  1  I.  C.  C.  372,  1  I.  C.  R. 
701 ;  Delaware  State  Grange  v.  New  York,  P.  &  N.  R.  Co.,  2  I. 
C.  C.  309,  2  I.  C.  R.  187.  Rule  as  to  rehearings  stated  by  Judge 
Cooley.  Riddle,  Dean  &  Co.  v.  Pittsburg  &  L.  E.  R.  Co.,  1  I. 
C.  C.  490,  1  I.  C.  R.  77Z.  Case  not  decided  on  a  theory,  neither 
in  the  complaint  nor  the  evidence.  Martin  v.  Chicago,  B.  &  Q. 
R.  Co..  2  I.  C.  C.  25,  2  I.  C.  R.  32.  Sufficient  to  make  initial  car- 
rier a  party  when  complaining  against  a  classification.  Any 
party  at  interest  may  be  heard  without  formal  intervention. 
Hurlburt  v.  Lake  Shore  &  ^I.  S.  R.  Co.,  2  I.  C.  C.  122,  2  I.  C.,R. 
81.  Decision  of  the  Commission  applies  to  the  facts  of  the  par- 
ticular case.  Re  Relative  Tank  and  Barrel  Rates,  2  I.  C.  C. 
365,  2  I.  C.  R.  245.  After  a  case  closed,  an  application  from  one 
not  a  party  for 'a  rehearing  will  not  be  granted.  Re  Petition  of 
Produce  Exxhange  of  Toledo,  2  L  C.  C.  588.  2  L  C.  R.  412. 
Commission  may  investigate  and  deal  with  violations  of  the  law 
without  formal  complaint.  Re  Investigation  of  Acts  of  Grand 
Trunk  Ry.,  3  I.  C.  C.  89,  2  I.  C.  R.  496.  Re  Alleged  Excessive 
Rates  on  Food  Products,  4  I.  C.  C.  48,  116,  3  I.  C.  R.  90,  151. 
What  a  petition  for  rehearing  should  show.  Myers  v.  Penn. 
Co.,  2  I.  C.  C.  573,  2  I.  C.  R.  403,  544.  Must  allege  that  the 
violation  complained  of  occurred  with  reference  to  an  interstate 
shipment.  White  v.  Mich.  Cent.  R.  Co.,  3  I.  C.  C.  281,  2  I.  C.  R. 
641.  When  a  complaint  is  filed  by  a  state  railroad  Commission, 
it  will  not  be  dismissed  because  such  Commission  is  tliereafter 
abolished.  Railroad  Commission  of  Florida  v.  Savannah,  Fla. 
&'  W.  R.  Co.,  5  L  C.  C.  13,  3  L  C.  R.  688.  Complaint  may  be 
filed  against  a  receiver  of  a  carrier  engaged  in  interstate  com- 
merce. Railroad  Commission  of  Georgia.  Trammell  et.  al.  v. 
Clyde^S.  S.  Co.,  5  L  C.  C.  324,  4  I.  C.  R.  120.  Commission 
will  take  proof  on  complaint  that  carrier  has  not  answered. 
Tecumseh  Celery  Co.  v.  Cincinnati,  J.  &  M.  Ry.  Co.,  5  I.  C.  C. 
663,  4  I.  C.  R.  318.  Different  ground  of  an  objection  to  a  rate 
may  be  urged  in  a  second  complaint.  Schumacher  ^Milling  Co. 
V.  Chicago,  R.  I.  &  P.  R.  Co.,  6  I.  C.  C.  61,  4  I.  C.  R.  2>7Z,  384. 
Notwithstanding  complainant  may  have  violated  the  law,  Com- 
mission will  act  on  complaint  for  benefit  of  public.  Page  v. 
Delaware,  L.  &  W.  R.  Co.,  6  I.  C.  C.  148,  548,  4  I.  C.  R.  525. 
Long  after  complaint  decided  will  not  reopen  for  purpose  of  act- 
ing on  application  for  reparation.     Rice,  R.  &  W.  v.  W.  N.  Y. 


§  392.]  Annotated.  573 

&  Peiin.  R.  Co.,  6  I.  C.  C.  455.  Can  not  authoritatively  deter- 
mine what  is  not  in  issue  by  pleadings.  Commercial  Club  of 
Omaha  v.  Chicago,  R:  I.  &  P.  Ry.  Co.,  6  I.  C.  C.  647.  An  as- 
sociation may  bring  complaint  and  defendants  not  entitled  to  dis- 
missal because  there  is  no  direct  damage  to  complainant.  Milk 
Producers  Protective  Asso.  v.  Delaware,  L.  &  W.  R.  Co.,  7  I.  C. 
C.  92,  163.  Shippers  claim  submitted  by  the  carrier  treated  as 
a  formal  case.  Roth  v.  Tex.  &  Pac.  Ry.  Co.,  9  I.  C.  C.  602. 
Commission  clearly  has  the  right  to  award  damages.  Cattle 
Raisers'  Asso  of  Texas  v.  Chicago,  B.  &  Q.  R.  Co.,  10  I.  C.  C. 
83.  One  a  party  to  a  case  may  amend  and  claim  reparation, 
id.  105.  Complaints  against  unreasonable  rates  are  in  behalf  of 
the  public  and  complainants  need  not  enter  with  "clean  hands." 
Tift  V.  So.  Ry.  Co.,  10  I.  C.  C.  548,  578.  Order  enforced.  138 
Fed.  753,  123  Fed.  789.  Affirmed.  206  U.  S.  428,  51  L.  Ed. 
1124,  27  Sup.  Ct.  709.  Parties  may  present  a  written  statement 
of  facts  and  to  obtain  the  opinion  of  the  Commission  thereon. 
Re  Freight  Rates  Between  Memphis  and  Points  in  Arkansas, 
11  I.  C.  C.  180.  Cases  decided  before  amendment  of  June  29, 
1906,  reopened  after  that  amendment  for  further  hearing.  Cat- 
tle Raisers'  Asso.  z'.  Mo.,  Kan.  &  Tex.  Ry.  Co.,  12  I.  C.  C.  1. 
But  not  when  complainant  had  waited  for  about  a  year  before 
trying  to  enforce  an  order  which  the  carriers  disobeyed.  Cattle 
Raisers'  Asso.  v.  Chicago,  B.  &  O.  R.  Co.,  12  I.  C.  C.  6,  507. 
Complaints  must  be  presented  with  reasonable  diligence.  Pro- 
ducer's Pipe  Line  Co.  v.  St.  L.,  I.  M.  &  S.  Ry.  Co.,  12  I.  C.  C. 
186.  Reparation  asked  informally  after  hearing  closes  not  con- 
sidered. Dallas  Freight  Bureau  v.  Gulf  C.  &  S.  F.  Ry.  Co.,  12  I. 
C.  C.  223.  Testimony  alone  of  a  person  having  no  interest  in 
or  personal  knowledge  of  the  rate  complained  of  insufficient  to 
sustain  a  complaint.  Dallas  Freight  Bureau  v.  Mo.,  Kan.  & 
Tex.  Ry.  Co.,  12  I.  C.  C.  427.  The  Commission,  being  an  ad- 
ministrative body,  is  unencumbered  by  technicalities.  Missouri 
&  Kan.  Shippers'  Asso.  v.  Mo.,  Kan.  &  Tex.  Ry.  Co.,  12  I.  C.  C. 
483.  Each  case  must  be  disposed  of  on  its  own  facts,  and  no 
general  rule  will  be  made  that  through  rates  must  not  exceed  the 
sum  of  the  locals.  Coffeyville  Vitrified  Brick  &  Tile  Co.  v.  St. 
Louis  &  S.  F.  R.  Co.,  12  I.  C.  C.  498.  What  is  an  "associa- 
tion" within  meaning  of  section.  Forest  City  Freight  Bureau 
V.  Ann  Arbor  R.  Co.,  13  I.  C.  C.  118.  A  complaint  for  repara- 
tion  bv   a   voluntarv   association    must   name   the   members   and 


574  Acts  Regulating  Commerce,  [§  392. 

specify  and  describe  the  sliipments  with  reasonable  particu- 
larity, but  see  the  facts  of  the  case.  Mo.  &  Kan.  Shippers'  Asso. 
V.  A.  T.  &  S.  F.  Ry.  Co.,  13  I.  C.  C.  411.  Amendment  not 
allowed  to  graft  on  an  application  for  through  routes  and  joint 
rates  a  claim  for  reparation.  La  Salle  &  Bureau  Co.,  R.  Co.  v. 
Chicago  &  N.  W.  Ry.  Co.,  13  I.  C.  C.  610.  Not  necessary  in 
complaint  for  reparation  to  allege  protest.  Baer  Bros.  Mercan- 
tile Co.  V.  Mo.  Pac.  Ry.  Co.,  13  I.  C.  C.  329;  Southern  Pine 
Lumber  Co.  v.  So.  Ry.  Co.,  14  L  C.  C.  195;  Nollenberger  v. 
Mo.  Pac.  Ry.  Co.,  15  L  C.  C.  595,  596.  This  section  shows  a 
legislative  intention  to  divorce  proceedings  before  the  Commis- 
sion of  all  technicalities.  Washer  Grain  Co.  v.  Mo.  Pac.  Ry.  Co., 
15  L  C.  C.  147,  153.  Cited  arguing  the  power  to  award  repa- 
ration for  past  shipments.  Arkansas  Fuel  Co.  v.  Chicago,  M. 
&  St.  P.  Ry.  Co.,  16  I.  C.  C.  95,  98.  This  section  prescribed 
procedure  before  Commission.  Int.  Com.  Com.  v.  L.  &  N.  R.  Co., 
73  Fed.  409,  414.  An  action  for  mandamus  under  section  twen- 
ty-three will  not  preclude  a  shipper  filing  a  complaint  under 
section  thirteen.  Merchants  Coal  Co.  v.  Fairmont  Coal  Co., 
160  Fed.  769.  When  a  complaint  is  filed  with  the  Commission, 
it  must,  if  complaint  presents  matter  within  the  purview  of  the 
act,  investigate  regardless  of  whether  or  not  the  complainant 
may  suffer  direct  damage  from  the  act  complained  of.  Int.  Com. 
Com.  V.  Detroit,  G.  H.  &  M.  Ry.  Co.,  57  Fed.  1005,  4  I.  C.  R. 
722.  Reversed  on  other  grounds.  Detroit,  G.  H.  &  M.  Ry.  Co. 
V.  Int.  Com.  Com.,  74  Fed.  803,  21  C.  C.  A.  103,  43  U.  S.  App. 
308.  Circuit  court  of  appeals  affirmed.  Ry.  v.  Co.,  167  U.  S. 
633,  42  L.  Ed.  306,  17  Sup.  Ct.  986.  Int.  Com.  Com.  v.  Baird, 
194  U.  S.  25,  39,  48  L.  Ed.  860,  867,  24  Sup.  Ct.  563.  See  opin- 
ion circuit  judge.  Int.  Com.  Com.  v.  Philadelphia  &  R.  Ry.  Co., 
123  Fed.  969. 

Notes  of  Decisions  Rendered  Since  1909. 

Construing  the  section  with  Sections  8,  9,  14  and  16  of  the 
act,  held  the  Commission  may  award  damages  for  an  excessive 
and  unreasonable  rate.  Arkansas  Fuel  Co.  v.  C.  M.  &  St.  P.  Ry. 
Co.,  16  I.  C.  C.  95,  98 ;  Hillsdale  Coal  &  Coke  Co.  r.  P.  R.  R.  Co., 
dissenting  opinion,  19  I.  C.  C.  356,  382.  A  complaint  is  an 
appeal  to  the  government.  Advances  in  Rates,  Western  case, 
20  I.  C.  C.  307,  315.  Procedure  liberal,  but  carriers  should  have 
notice  of  what  is  claimed.    United  States  Leather  Co.  i'.  So.  Ry. 


§  393. J  Annotated.  575 

Co.,  21  I.  C.  C.  323,  324.  Augusta  &  Savannah  Steamboat  Co. 
V.  O.  S.  S.  Co.,  26  I.  C.  C.  380,  382;  Eastern  Wheel  Mfrs.  Co.  v. 
A.  &  V.  Ry.  Co.,  27  I.  C.  C.  370,  372.  Findings  under  complaint 
bind  only  the  carrier  defendant  thereto.  Fels  &  Co.  v.  P.  R.  R. 
Co.,  23  I.  C.  C.  483,  486.  This  and  cognate  sections  guarantee 
a  full  hearing  preliminary  to  issuing  an  order.  Wickwire  Steel 
Co.  V.  N.  Y.  C.  &  H.  R.  R.  Co.,  30  I.  C.  C.  415,  424,  citing 
Int.  Com.  Com.  v.  L.  &  N.  R.  R.  Co.,  227  U.  S.  88,  57  L.  Ed.  431, 
ZZ  Sup.  Ct.  185,  reversing  Louisville  &  N.  R.  R.  Co.  v.  Int.  Com. 
Com.,  195  Fed.  541,  Opin.  Com.  Ct.  No.  4,  p.  325,  375.  For 
further  history  of  the  case  see  New  Orleans  Board  of  Trade  v. 
L.  &  N.  R.  Co.,  17  I.  C.  C.  231  ;  L.  &  N.  R.  R.  Co.  v.  Int.  Com. 
Com.,  184  Fed.  118.  The  Commission  has  power  to  investigate  the 
true  situation  wath  respect  to  all  matters  properly  affecting  the 
questions  involved.  So.  Ry.  Co.  v.  United  States,  204  Fed.  465, 
Opin.  Com.  Ct.  No.  82.  p.  603.  Commission's  findings  "supported 
by  substantial,  though  conflicting,  evidence,"  are  conclusive  on 
the  courts.  Louisville  &  N.  R.  Co.  v.  U.  S.,  238  U.  S.  1,  59  L. 
Ed.  — ,  35  Sup.  Ct.  696. 

§  393.  Commission  May  on  Its  Own  Motion  Institute  In- 
vestigations.— Said  Commission  shall,  in  like  manner  and  with 
the  same  authority  and  powers,  investigate  any  complaint  for- 
warded by  the  railroad  commissioner  or  railroad  commission  of 
any  State  or  Territory  at  the  request  of  such  commissioner  or 
Commission,  and  the  Interstate  Commerce  Commission  shall 
have  full  authority  and  power  at  any  time  to  institute  an  inquiry, 
on  its  own  motion,  in  any  case  and  as  to  any  matter  or  thing  con- 
cerning which  a  complaint  is  authorized  to  be  made,  to  or  before 
said  Commission  by  any  provision  of  this  act,  or  concerning 
which  any  question  may  arise  under  any  of  the  provisions  of  this 
act,  or  relating  to  the  enforcement  of  any  of  the  provisions  of 
this  act.  And  the  said  Commission  shall  have  the  same  powers 
and  authority  to  proceed  with  any  inquiry  instituted  on  its  own 
motion  as  though  it  had  been  appealed  to  by  complaint  or  peti- 
tion under  any  of  the  provisions  of  this  act,  including  the  power 
to  make  and  enforce  any  order  or  orders  in  the  case,  or  relating 
to  the  matter  or  thing  concerning  which  the  inquiry  is  had.  ex- 
cepting orders  for  the  payment  of  money.  No  complaint  shall 
at  any  time  be  dismissed  because  of  the  absence  of  direct  dam- 
age to  the  complainant. 


576  Acts  Reglxating  Commerce,  [§  394. 

Paragraph  2  of  Sec.  13  as  amended  by  the  act  of  June  18, 
1910.    The  original  paragraph  read: 

Said  Commission  shall  in  like  manner  investigate  any  com- 
plaint forwarded  by  the  Railroad  Commissioner  or  Railroad  Com- 
mission of  any  state  or  territory,  at  the  request  of  such  Com- 
missioner or  Commission,  and  may  institute  any  inquiry  on  its 
own  motion  in  the  same  manner  and  to  the  same  efifect  as  though 
complaint  had  been  made. 

Notes  of  Decisions  Rendered  Since  1909. 

Last  Sentence  of  section  cited.  Lum  v.  G.  N.  Ry.  Co.,  21  I. 
C.  C.  558,  561  ;  Minneapolis  Civic  &  Commerce  Ass'n  v.  C.  M. 
&  St.  P.  Ry.  Co.,  30  I.  C.  C.  663,  670;  Philadelphia  R.  Co.  v. 
United  States,  219  Fed.  988. 

See  also  notes  next  preceding  section. 

§  394.  Reports  of  Commission  on  Investigations,  How 
Made  and  Published. — That  whenever  an  investigation  shall 
be  made  by  said  Commission,  it  shall  be  its  duty  to  make  a  re- 
port in  writing  in  respect  thereto,  which  shall  state  the  conclu- 
sions of  the  Commission,  together  with  its  decision,  order,  or  re- 
quirement in  the  premises ;  and  in  case  damages  are  awarded 
such  report  shall  include  the  findings  of  fact  on  which  the 
award  is  made. 

All  reports  of  investigations  made  by  the  Commission  shall  be 
entered  of  record,  and  a  copy  thereof  shall  be  furnished  to  the 
party  who  may  have  complained,  and  to  any  common  carrier 
that  may  have  been  complained  of. 

The  Commission  may  provide  for  the  publication  of  its  re- 
ports and  decisions  in  such  form  and  manner  as  may  be  best 
adapted  for  public  information  and  use,  and  such  authorized 
publications  shall  be  competent  evidence  of  the  reports  and  de- 
cisions of  the  Commission  therein  contained  in  all  courts  of  the 
United  States  and  of  the  several  states  without  any  further 
proof  or  authentication  thereof.  The  Commission  may  also 
cause  to  be  printed  for  early  distribution  its  annual  reports. 

Section  fourteen  as  amended  by  the  acts  of  March  2,  1889, 
and  June  29,  1906. 

The  original  act  read : 

"That  whenever  an  investigation  shall  be  made  by  said  Com- 
mission, it  shall  be  its  duty  to  make  a  report  in  writing  in  respect 
thereto,   which   shall   include   the   findings   of    fact   upon   which 


§  394.]  Annotated.  577 

the  conclusions  of  the  Commissions  are  based,  together  with 
its  recommendation  as  to  what  reparation,  if  any,  should  be  made 
by  the  common  carrier  to  any  party  or  parties  who  may  be 
found  to  have  been  injured;  and  such  findings  so  made  shall 
thereafter,  in  all  judicial  proceedings,  be  deemed  prima  facie 
evidence  as  to  each  and  every  fact  found. 

"All  reports  of  investigations  made  by  the  Commission  shall 
be  entered  of  record,  and  a  copy  thereof  shall  be  furnished  to 
the  party  who  may  have  complained,  and  to  any  common  carrier 
that  may  have  been  complained  of." 

The  act  of  March  2,  1889,  added  the  last  paragraph  of  the 
present  section. 

Under  the  original  act,  construing  section  fourteen  with  sec- 
tion ten,  the  Commission  held  that  it  must  be  a  "willful"  viola- 
tion of  the  act  to  authorize  it  to  make  a  recommendation  of  repa- 
ration. Railroad  Com.  of  Fla.  v.  Savannah,  Fla.  &  W.  R.  Co.,  5 
I.  C.  C.  13,  136,  3  I.  C.  R.  688.  693,  750.  Section  cited,  Washer 
Grain  Co.  v.  Mo.  Pac.  R.  Co.,  15  I.  C.  C.  147,  153;  Arkansas 
Fuel  Co.  V.  Chicago,  M.  &  St.  P.  R.  Co.,  16  I.  C.  C.  95,  98. 
Section  recited  in  course  of  opinion.  Int.  Com.  Com.  v.  Cincin- 
nati, N.  O.  &  T.  P.  R.  Co.,  64  Fed.  981,  983,  13  U.  S.  App.  700; 
Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  73  Fed.  409,  414.  What  the 
report  should  show.  Order  will  be  set  aside  when  the  Com- 
mission excludes  relevant  evidence,  or  fails  to  give  considera- 
tion thereto.  Tex.  &  Pac.  R.  Co.  v.  Int.  Com.  Com.,  162  U.  S. 
197,  40  L.  Ed.  940,  16  Sup.  Ct.  666.  Efifect  of  the  Commission's 
finding  with  reference  to  the  classification  of  a  commodity.  Int. 
Com.  Com.  v.  Cincinnati,  H.  &  D.  Ry.  Co.,  146  Fed.  559. 
Affirmed.  Cincinnati,  H.  &  D.  Ry.  Co.  v.  Int.  Com.  Com.,  206 
U.  S.  142,  51  L.  Ed.  995,  27  Sup.  Ct.  648.  Eft'ect  given  to  the 
finding  of  the  Commission  fixing  a  reconsignment  charge.  St. 
Louis  Hay  &  Grain  Co.  v.  So.  Ry.  Co.,  149  Fed.  609.  Affirmed. 
So.  Ry.  Co.  V.  St.  Louis  Hay  &  Grain  Co.,  153  Fed.  728,  82  C. 
C  A.  614.  Reversed,  holding  that  the  Commission  erred  in  law 
in  fixing  a  reconsignment  charge  at  the  actual  cost  thereof,  the 
carrier  being  entitled  to  a  profit.  So.  Ry.  Co.  v.  St.  Louis  Hay 
fr  Grain  Co.,  214  U.  S.  297,  53  L.  Ed.  1004,  29  Sup.  Ct.  678. 

Notes  of  Decisions  Rendered  Since  1909. 

Cited.  Arkanas  Fuel  Co.  v.  C.  M.  &  St.  P.  Ry.  Co.,  16  I.  C. 
C.  95,  98.     Finding  of   facts  re(|uired  when  award  of  damages 

—10 


578  Acts  Regulating  Commerce,  [§  395. 

made.  Hillsdale  Coal  &  Coke  Co.  v.  P.  R.  R.  Co.,  19  I.  C.  C. 
356,  382.  No  sufficient  findings  of  fact.  Lehigh  V.  R.  Co.  v. 
Clark,  207  Fed.  717,  125  C.  C.  A.  235.  See  order  of  the  Com- 
mission denying  reparation.  Naylor  &  Co.  v.  L.  V.  R.  Co.,  15 
I.  C.  C.  9;  but,  on  rehearing,  reparation  ordered,  Unrep.  Opin. 
168,  18  I.  C.  C.  624.  Distinction  between  reparation  and  general 
orders.  Lehigh  Valley  R.  Co.  v.  Meeker,  211  Fed.  785,  re- 
versing Meeker  v.  L.  V.  R.  Co.,  175  Fed.  320,  162  Fed.  354,  and 
Meeker  v.  Lehigh  V.  R.  Co.,  236  U.  S.  412,  434,  59  L.  Ed.  — ,  35 
Sup.  Ct.  328,  Z?>7  and  Sec.  383,  supra. 

§  395.  Power  of  Commission  to  Determine  and  Prescribe 
Just  and  Reasonable  Rates,  Regulations  and  Practices. — 
That  whenever,  after  full  hearing  of  a  complaint  made  as  pro- 
vided in  section  thirteen  of  this  act,  or  after  full  hearing  under 
an  order  for  investigation  and  hearing  made  by  the  Commission 
on  its  own  initiative  (either  in  extension  of  any  pending  com- 
plaint or  without  any  complaint  whatever),  the  Commission 
shall  be  of  opinion  that  any  individual  or  joint  rates  or  charges 
whatsoever  demanded,  charged  or  collected  by  any  common  car- 
rier or  carriers  subject  to  the  provisions  of  this  act  for  the  trans- 
portation of  persons  or  property  or  for  the  transmission  of  mes- 
sages by  telegraph  or  telephone  as  defined  in  the  first  section  of 
this  act,  or  that  any  individual  or  joint  classifications,  regulations, 
or  practices  whatsoever  of  such  carrier  or  carriers  subject  to  the 
provisions  of  this  act  are  unjust  or  unreasonably  or  unjustly  dis- 
criminatory, or  unduly  preferential  or  prejudicial  or  otherwise 
in  violation  of  any  of  the  provisions  of  this  act,  the  Commission 
is  hereby  authorized  and  empowered  to  determine  and  prescribe 
what  will  be  the  just  and  reasonable  individual  or  joint  rate  or 
rates,  charge  or  charges,  to  be  thereafter  observed  in  such  case 
as  the  maximum  to  be  charged,  and  what  individual  or  joint 
classification,  regulation,  or  practice  is  just,  fair,  and  reasonable, 
to  be  thereafter  followed,  and  to  make  an  order  that  the  carrier 
or  carriers  shall  cease  and  desist  from  such  violation  to  the  ex- 
tent to  which  the  Commission  finds  the  same  to  exist,  and  shall 
not  thereafter  publish,  demand,  or  collect  any  rate  or  charge  for 
such  transportation  or  transmission  in  excess  of  the  maximum 
rate  or  charge  so  prescribed,  and  shall  adopt  the  classification 
and  shall  conform  to  and  observe  the  regulation  or  practice  so 
prescribed. 


§  395.]  Annotatkd.  579 

First  part  of  paragraph  1,  Sec.  15  as  amended  by  act  of  June 
18,   1910.     Prior  to  this  amendment  the  act  read: 

That  the  Commission  is  authorized  and  empowered,  and  it 
shall  be  its  duty,  whenever,  after  full  hearing  upon  a  complaint 
made  as  provided  in  section  thirteen  of  this  act,  or  upon  com- 
plaint of  any  common  carrier,  it  shall  be  of  the  opinion  that  any 
of  the  rates,  or  charges  whatsoever,  demanded,  charged,  or  col- 
lected by  any  common  carrier  or  carriers,  subject  to  the  provi- 
sions of  this  act,  for  the  transportation  of  persons  or  property  as 
defined  in  the  first  section  of  this  act,  or  that  any  regulations  or 
practices  whatsoever  affecting  such  rates,  are  unjust  or  unreason- 
able, or  unjustly  discriminatory,  or  unduly  preferential  or  prej- 
udicial, or  otherwise  in  violation  of  any  of  the  provisions  of  this 
act,  to  determine  and  prescribe  what  will  be  the  jvist  and  reason- 
able rate  or  rates,  charge  or  charges,  to  be  thereafter  observed  in 
such  case  as  the  maximum  to  be  charged ;  and  what  regulation  or 
practice  in  respect  to  such  transportation  is  just,  fair,  and  rea- 
sonable to  be  thereafter  followed;  and  to  make  an  order  that  the 
carrier  shall  cease  and  desist  from  such  violation,  to  the  extent 
to  which  the  Commission  find  the  same  to  exist,  and  shall  not 
thereafter  publish,  demand,  or  collect  any  rate  or  charge  for 
such  transportation  in  excess  of  the  maximum  rate  or  charge  so 
prescribed,  and  shall  conform  to  the  regulation  or  practice  so 
prescribed. 

First  part  of  section  fifteen,  as  added  by  the  act  of  June  29, 
1906. 

The  original  section  read : 

"That  if  in  any  case  in  which  an  investigation  shall  be  made 
by  said  Commission  it  shall  be  made  to  appear  to  the  satisfac- 
tion of  the  Commission,  either  by  the  testimony  of  witnesses  or 
other  evidence,  that  anything  has  been  done  or  omitted  to  be  done 
in  violation  of  the  provisions  of  this  act,  or  of  any  law  cogniz- 
able by  said  Commission,  by  any  common  carrier,  or  that  any  in- 
jury or  damage  has  been  sustained  by  the  party  or  parties  com- 
plaining, or  by  other  parties  aggrieved  in  consequence  of  any 
such  violation,  it  shall  be  the  duty  of  the  Commission  to  forth- 
with cause  a  copy  of  its  report  in  respect  thereto  to  be  delivered 
to  such  common  carrier,  together  with  a  notice  to  said  common 
carrier  to  cease  and  desist  from  such  violation,  or  to  make  repa- 
ration for  the  injury  so  found  to  have  been  done,  or  both,  within 
a  reasonable  time,  to  be  specified  by  the  Commission  ;  and  if, 


580  Acts  Regulating  Commerce,  [§  395. 

witliin  the  time  specified,  it  shall  be  made  to  appear  to  the  Com- 
mission that  such  common  carrier  has  ceased  from  such  violation 
•of  law,  and  has  made  reparation  for  the  injury  found  to  have 
been  done,  in  compliance  with  the  report  and  notice  of  the  Com- 
mission, or  the  satisfaction  of  the  party  complaining,  a  statement 
to  that  effect  shall  be  entered  of  record  by  the  Commission,  and 
the  said  common  carrier  shall  thereupon  be  relieved  from  further 
liability  or  penalty  for  such  particular  violation  of  law." 

The  original  act  gave  the  Commission  power  not  only  to  de- 
termine what  rates  were  unreasonable,  but  what  were  reasonable. 
Coxe  Bro.  &  Co.  v.  Lehigh  V.  R.  Co.,  4  I.  C.  C.  535,  577,  578, 
3  I.  C.  R.  460,  478.  Order  not  enforced.  Int.  Com.  Com.  v. 
Lehigh  V.  R.  Co.,  74  Fed.  784 ;  Murphy,  Wasey  &  Co.  v.  Wabash 
R.  Co.,  5  L  C.  C.  122,  3  L  C.  R.  725,  726.  Power  to  prescribe 
rates  exercised.  Merchants  Union  of  Spokane  v.  N.  Pac.  R.  Co., 
5  L  C.  C.  478.  4  L  C.  R.  183,  198.  Order  not  enforced.  Farmers 
Loan  &  Trust  Co.  v.  N.  Pac.  R.  Co.,  83  Fed.  249;  Freight 
Bureau  of  Cincinnati  i'.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.,  6  L 
C.  C.  195,  4  L  C.  R.  592,  617.  Order  not  enforced.  Int.  Com. 
Com.  V.  Cincinnati,  N.  O.  &  T.'  P.  Ry.  Co.,  76  Fed.  183,  167  U. 
S.  479,  42  L.  Ed.  243,  17  Sup.  Ct.  986.  The  Supreme  Court  hav- 
ing intimated  in  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Int.  Com. 
Com.,  162  U.  S.  184,  40  L.  Ed.  935,  16  Sup.  Ct.  700,  5  I.  C.  R. 
391,  and  having  held  in  Int.  Com.  Com.  z'.  Cincinnati,  N.  O.  & 
T.  P.  Ry.  Co.,  167  U.  S.  479,  42  L.  Ed.  243,  17  Sup.  Ct.  896, 
that  the  Commission  had  no  power  to  fix  rates,  the  Commission, 
after  citing  these  cases,  refused  to  exercise  such  power.  Carey 
V.  Eureka  Springs  R.  Co.,  7  I.  C.  C.  286,  319.  The  power  the 
Commission  had  and  exercised  before  the  act  of  June  29,  1906, 
was  practically  to  prescribe  the  old  rate  as  the  rate  for  the 
future  when  an  advance  was  declared  illegal.  For  illustration, 
see  Tift  V.  So.  Ry.  Co.,  10  I.  C.  C.  548.  and  Central  Yellow  Pine 
Asso.  V.  111.  Cent.  R.  Co.,  10  I.  C.  C.  505,  where  an  advance 
was  declared  illegal,  and  Southern  Pine  Lumber  Co.  v.  So.  Ry. 
Co.,  14  I.  C.  C.  195,  and  Nicola,  Stone  &  Meyers  Co.  z'.  L.  &  N. 
R.  Co.,  14  I.  C.  C.  199,  where  the  full  advance  was  decided  to  be 
the  measure  of  reparation.  No  order  made  because-  of  lack  of 
authority  to  fix  rates.  Hastings  ALilting  Co.  x'.  Chicago.  M.  & 
St.  P.  Ry.  Co.,  11  I.  C.  C.  675.  ^The  old  iaw  gave  power  to  deter- 
mine how  much  reparation  should  be  awarded  and  thereby  to 
determine  to  what  extent  a  rate  was  excessive ;  the  amendment 


§  395.]  Annotated.  581 

gave  the  additional  power  to  prescribe  what  rate  should  be  col- 
lected in  the  future.  Cattle  Raisers'  Asso.  v.  Mo.,  Kan.  &  Tex. 
Ry.  Co.,  12  I.  C.  C.  1,  3.  Section  construed  with  reference  to 
elevator  allowances.  Re  Allowances  to  Elevators,  12  I.  C.  C. 
85.  Distribution  of  coal  cars  is  a  regulation  and  practice  affect- 
ing rates  under  this  section.  Railroad  Com.  of  Ohio  v.  Wheeling 
&  L.  E.  R.  Co.,  12  I.  C.  C.  398;  Rail  &  River  Coal  Co.  v.  B.  & 
O.  R.  Co.,  14  I.  C.  C.  86.  Rules  as  to  who  shall  load  and  unload 
freight  subject  to  the  jurisdiction  of  this  Commission  under  this 
section.  Wholesale  Fruit  &  Producers  Asso.  v.  A.  T.  &  S.  F. 
Ry.  Co.,  14  I.  C.  C.  410,  421.  Section  with  section  fourteen  con- 
templates awards  of  money  by  the  Commission.  Washer  Grain 
Co.  V.  Mo.  Pac.  Ry.  Co.,  15  I.  C.  C.  147,  153.  Gives  power  to  fix 
rates  for  the  future  and  award  reparation  for  the  past.  Ark- 
ansas Fuel  Co.  V.  Chicago,  M.  &  St.  P.  R.  Co.,  16  I.  C.  C.  95,  96. 
Whether  or  not  the  Commission  had  power  to  fix  maximum 
rates  prior  to  the  act  of  June  29,  1906,  was  first  mooted  and 
doubted  in  the  Supreme  Court  in  the  cases  of  Cincinnati,  N.  O. 
&  T.  P.  R.  Co.  V.  Int.  Com.  Com.,  162  U.  S.  184,  40  L.  Ed.  935, 
16  Sup.  Ct.  700,  and  Tex.  &  Pac.  Ry.  Co.  v.  Int.  Com.  Com.,  162 
U,  S.  197,  40  L.  Ed.  940,  16  Sup.  Ct.  666,  and  such  power  was 
definitely  declared  not  to  have  been  given  the  Commission  in  the 
case  of  Int.  Com.  Com.  v.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  167 
U.  S.  479,  42  L.  Ed.  243,  17  Sup.  Ct.  896.  Subsequently  these 
cases  were  followed  by  the  inferior  courts.  See  Fed.  Stat.  Ann. 
vol.  3,  p.  840. 

Section  fifteen  of  the  old  act  is  little  like  the  Hepburn- Amend- 
ment. Therefore,  citations  to  the  former  are  not  directly  ap- 
plicable to  the  present  section.  Construing  this  section  with  others, 
from  twelve  to  eighteen,  inclusive,  held  that  "the  Commission  is 
invested  with  only  administrative  powers  of  supervision  and  in- 
vestigation, which  fall  far  short  of  making  the  board  a  court,  or 
its  action  judicial,  in  the  proper  sense  of  the  term."  Kentucky 
&.I.  Bridge  Co.  z'.  L.  &  N.'  R.  Co.,  Z7  Fed.  567,  613.  Section 
required  notice  to  be  given  carrier  to  cease  violations  of  act. 
Int.  Com.  Com.  v.  Detroit,  G.  H.  &  ^I.  R.  Co.,  57  Fed.  1005, 
1008,  4  I.  C.  R.  722.  While  the  ])roceedings  of  the  Commission 
are  not  judicial,  its  procedure  should  substantially  conform  to 
that  before  a  court.  Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  7Z  Fed. 
409,  414.  When  the  Commission  adopts  an  erroneous  principle 
in  arriving  at  a  conclusion,  its  order  based  thereon  will  not  be 


582  Acts  Regulating  Commerce,  [§  395. 

jiuliciallv  enforced.     Int.   Com.   Com.  v.  Lehigh  V.  R.   Co.,  74 
Fed.  784,  787. 

While  the  Hepburn  Act  gives  power  to  the  Commission  to  fix 
rates,  courts  may  enjoin  advance  until  the  Commission  can  de- 
termine whether  or  not  the  advance  is  legal.  Kiser  v.  Cent,  of 
Ga.  Ry.  Co.,  158  Fed.  193,  198.  The  Commission  may  make  a 
finding  without  being  embarrassed  by  admissions  in  a  complaint. 
Cincinnati,  H.  &  D.  R.  Co.  v.  Int.  Com.  Com.,  206  U.  S.  142,  149, 
51  L.  Ed.  995,  998,  27  Sup.  Ct.  648.  Immaterial  error  of  law  not 
ground  to  set  aside  order  of  Commission  which  is  given  the  force 
"due  to  the  judgments  of  a  tribunal  appointed  by  law  and  in- 
formed by  experience."  111.  Cent.  R.  Co.  v.  Int.  Com.  Com., 
206  U.  S.  441,  454,  51  L.  Ed.  1128,  1134,  27  Sup.  Ct.  700.  Some 
orders  of  the  Commission  entered  since  the  passage  of  the  Hep- 
burn Act  have  reached  the  courts.  In  Stickney  v.  Int.  Com.  Com., 
164  Fed.  638,  644,  the  circuit  judge  said:  "This  court  has 
ample  jurisdiction  to  set  aside  or  suspend  any  order  of  the  com- 
mission resulting  from  a  misconception  and  misapplication  of 
a  law  to  conceded  or  undisputed  facts."  In  Mo.,  Kan.  &  Tex. 
R.  Co.  V.  Int.  Com.  Com.,  164  Fed.  645,  the  circuit  judge  held: 
That  the  same  rules  of  law  applied  when  a  suit  was  brought  to 
enjoin  an  order  of  the  Commission  as  when  brought  to  enforce 
such  order,  and  when  complainants  case  for  an  injunction  was 
"wanting  in  that  certainty,  fullness,  and  persuasive  force  which 
ought  to  be,  and  is,  essential  to  overcome  the  force  of  the  Com- 
mission's finding  or  determination  upon  which  the  order  is 
based,"  a  preliminary  injunction  was  denied.  Injunctions 
granted  against  order  of  Commission  for  error  in  law.  Delaware, 
L.  &  W.  R.  Co.  V.  Int.  Com.  Com.,  166  Fed.  498;  same  style  case, 
166  Fed.  499.  Stickney  case,  supra,  C.  R.  I.  &  P.  R.  Co.  v.  Int. 
Com.  Com.  (Mo.  River  Rate  Case),  171  Fed.  680.  Injunctions 
denied.  So.  Pac.  Ter.  Co.  v.  Int.  Com.  Com.,  166  Fed.  134;  Mo., 
Kan.  &  Tex.  Ry.  case,  supra. 

Notes  of  Decisions  Rendered  Since  1909. 

This  section  is  the  dominating  and  controlling  expression  of 
the  meaning  of  the  act.  Joynes  z'.  P.  R.  Co.,  17  I.  C.  C.  361. 
Wide  authority  given  the  Commission.  Commutation  Rate  case, 
21  I.  C.  C.  428,  431 ;  Central  Com.  Co.  v.  L.  &  N.  R.  Co.,  27  I.  C. 
C.  114.  115.  Coal  Rates  from  Oak  Hills,  Colo.,  30  I.  C.  C.  505, 
508.     Full  hearing  required.     Douglas  &  Co.  v.  C.  R.  I.  &  P. 


§  396.]  Annotated.  583 

Ry.  Co.,  21  I.  C.  C.  541,  citing  So.  Pac.  Co.  v.  Int.  Com.  Com., 
219  U.  S.  433,  55  L.  Ed.  283,  31  Sup.  Ct.  288;  Int.  Com.  Com.  v. 
L.  &  N.  R.  Co.,  227  U.  S.  88,  57  L.  Ed.  431,  ZZ  Sup.  Ct.  185,  and 
cases  cited.  Commission  has  authority  to  determine  how  cars 
shall  be  distributed.  Int.  Com.  Com.  v.  I.  C.  R.  Co.,  215  U.  S. 
452,  54  E.  Ed.  280,  30  Sup.  Ct.  163 ;  Int.  Com.  Com.  v.  C.  &  A. 
R.  Co.,  215  U.  S.  479,  54  L.  Ed.  291,  30  Sup.  Ct.  155.  For 
history  of  the  order  here  involved  see :  Chicago  &  A.  R.  Co.  v. 
Int.  Com.  Com.,  173  Fed.  930;  Traer  v.  C.  &  A.  R.  Co.,  13  I. 
C.  C.  451.  Other  cases  bearing  upon  the  question.  Ry.  Com.  of 
Ohio  et  al.  v.  Hocking  Valley  Ry.  Co.  et  al.,  12  I.  C.  C. 
398;  U.  S.  ex  rel.  Pitcairn  Coal  Co.  v.  B.  &  O.  Ry.  Co.,  (C.  C), 
154  Fed.  108;  Logan  Coal  Co.  v.  Pa.  Ry.  Co.  (C.  C),  154  Fed. 
497. 

The  Commission  can  not  condemn  a  rate  which  is  not  unrea- 
sonable, for  the  purpose  of  encouraging  an  industry.  So.  Pac. 
Co.  V.  I.  C.  C,  219  U.  S.  433,  55  L.  Ed.  283,  31  Sup.  Ct.  288. 
See  further  history  of  case :  So.  Pac.  Co.  v.  Int.  Com.  Com., 
177  Fed.  963;  same  styled  case,  215  U.  S.  226,  54  L.  Ed.  169, 
30  Sup.  Ct.  89;  Western  Oregon  Lumber  Mfgrs.  Asso.  v.  So. 
Pac.  Co.,  14  I.  C.  C.  61.  The  Commission  must  act  by  formal 
order.  Am.  Sugar  Refining  Co.  v.  D.  L.  &  W.  R.  Co.,  207  Fed. 
7ZZ,  125  C.  C.  A.  251,  reversing  same  styled  case,  200  Fed.  652. 
The  statute  gives  the  right  to  a  full  hearing  and  that  confers  the 
privilege  of  introducing  testimony  and  at  the  same  time  imposes 
the  duty  of  deciding  in  accordance  with  the  facts  proved.  Int. 
Com.  Com.  v.  L.  &  N.  R.  Co.,  227  U.  S.  88,  57  L.  Ed.  431,  33 
Sup.  Ct.  185,  reversing  L.  &  N.  R.  Co.  v.  Int.  Com.  Com.,  195 
Fed.  541.  For  Commission's  decision  see  New  Orleans  Board 
of  Trade  v.  L.  &  N.  R.  Co.,  17  I.  C.  C.  231.  In  the  opinion  of 
the  Supreme  Court  is  cited  the  authorities  in  which  the  force 
of  an  order  of  the  Commission  is  discussed.  See  also  Louis- 
ville &  N.  R.  Co.  V.  U.  S.,  238  U.  S.  1,  59  L.  Ed.  — ,  ZS  Sup. 
Ct.  696. 

§  396.  When  Orders  Take  Effect  and  How  Long  Con- 
tinue unless  Modified  or  Set  Aside  by  the  Commission  or 
a  Court. — All  orders  of  the  Commission,  except  orders  for  the 
payn\ent  of  money,  shall  take  efifect  within  such  reasonable  time, 
not  less  than  thirty  days,  and  shall  continue  in  force  for  such 
period  of  time,  not  exceeding  two  years,  as  shall  be  prescribed  in 
the   order   of   the   Commission,   unless   the   same    shall   be   sus- 


584  Acts  Regulating  Commerce,  [§  397. 

Ijended  or  modified  or  set  aside  by  the  Commission  or  be  sus- 
pended or  set  aside  by  a  court  of  competent  jurisdiction. 

Second  part  of  paragraph  one  of  section  fifteen  as  added  by 
act  of  June  29,  1906. 

Cited,  Mo.,  Kan.  &  Tex  Ry.  Co.  v.  Int.  Com.  Com.,  164  Fed. 
645,  649. 

Notes  of  Decisions  Rendered  Since  1909. 

A  finding  without  evidence  is  beyond  the  power  of  the  Com- 
mission, and  must  be  "set  aside  by  a  court  of  competent  jurisdic- 
tion." Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  227  U.  S.  88,  33  Sup.  Ct. 
185,  cited  next  preceding  section.  See  also  Tang  Tun  v.  Edsell, 
223  U.  S.  673.  681,  56  L.  Ed.  606,  32  Sup.  Ct.  359;  Low  Wah 
Suey  V.  Backus,  225  U.  S.  460.  468,  56  L.  Ed.  1165,  32  Sup.  Ct. 
734:  Zakonite  v.  Wolf,  226  U.  S.  272,  57  L.  Ed.  218,  33  Sup. 
Ct.  31  ;  United  States  v.  B.  &  O.  S.  \V.  R.  R.,  226  U.  S.  14,  57 
L  Ed.  104,  33  Sup.  Ct.  5 ;  Atlantic  C.  L.  v.  North  Carolina  Corp. 
Com.,  206  U.  S.  1.  20,  51  L.  Ed.  933,  27  Sup.  Ct.  585 ;  Wisconsin, 
M.  P.  R.  Co.  %'.  Jacobson,  179  U.  S.  287,  301,  45  L.  Ed.  194,  21 
Sup.  Ct.  115 ;  Oregon  Railroad  v.  Fairchild,  224  U.  S.  510,  56  L. 
Ed.  863,  32  Sup.  Ct.  55 ;  I.  C.  C.  v.  Illinois  Central,  215  U.  S. 
452,  470,  54  L.  Ed.  280.  30  Sup.  Ct.  155:  So.  Pac.  Co.  v.  Int. 
Com.  Com.,  219  U.  S.  433,  55  L.  Ed.  283,  31  Sup.  Ct.  288; 
Muser  v.  ^^lagone,  155  U.  S.  240.  247,  39  L.  Ed.  135,  15  Sup. 
Ct.  77. 

§  397.  Division  of  Joint  Rate  May  Be  Prescribed  by 
Commission. — Whenever  the  carrier  or  carriers,  in  obedience 
to  such  order  of  the  Commission  or  otherwise,  in  respect  to  joint 
rates,  fares,  or  charges,  shall  fail  to  agree  among  themselves  upon 
the  apportionment  or  division  thereof,  the  Commission  may  after 
hearing  make  a  supplemental  order  prescribing  the  just  and  rea- 
sonable proportion  of  such  joint  rate  to  be  received  by  each 
carrier  party  thereto,  which  order  shall  take  effect  as  a  part  of 
the  original  order. 

Last  part  of  paragraph  one  of  section  fifteen  as  added  by  act 
of  June  29,  1906. 

Before  the  amended  act  Commission  had  no  authority  to  com- 
pel carriers  to  make  joint  rates.  Re  Application  of  F.  W.  Clark, 
3  I.  C.  C.  649,  2  I.  C.  R.  797;  Commercial  Club  of  Omaha  t. 
Chicago.  R.  I.  &  Pac.  Ry.  Co.,  6  I.  C.  C.  6-^7.  677;  Fred  G.  Clark 
Co.  V.  Lake  Shore  &  M.  S.  Rv.  Co.,  11  I.  C.  C.  558,  Re  Alleged 


§  398.]  Annotateix  585 

Unlawful  Discrimination  Against  Enterprise  Transportation  Co., 
11  I.  C.  C.  587;  Ky.  &  I.  Bridge  Co.  v.  L.  &  N.  R.  Co.,  37  Fed. 
567;  Little  Rock  &  M.  R.  Co.  v.  St.  L.,  I.  M.  &  S.  Ry.  Co.,  41 
Fed.  559;  Chicago  &  N.  W.  Ry.  Co.  v.  Osborne,  52  Fed.  912,  915, 
3  C.  C.  A.  347;  Memphis  &  L.  R.  R.  Co.  v.  So.  Express  Co. 
(Express  cases),  117  U.  S.  1,  29  L.  Ed.  791,  6  Sup.  Ct.  542,  628; 
So.  Pac.  Co.  V.  Int.  Com.  Com.,  200  U.  S.  536,  553,  50  E.  Ed. 
585,  593,  20  Sup.  Ct.  330.  Under  the  Hepburn  law,  in  fixing  a 
division  of  joint  rates  between  carriers,  all  circumstances  should 
be  considered  and  such  divisions  should  not  be  on  a  mileage  or 
other  fixed  basis.  Star  Grain  &  Lumber  Co.  v.  A.  T.  &  S.  F.  Ry. 
Co.,  14  I.  C.  C.  364. 

Notes  of  Decisions  Rendered  Since  1909. 

The  power  to  prescribe  divisions  is  a  continuing  power.  Rates 
on  Lumber  and  Other  Forest  Products,  30  I.  C.  C.  371,  Z72.  The 
power  exercised,  People's  Fuel  Co.  v.  Grand  T.  W.  Ry.  Co.,  30 
I.  C.  C.  657;  Coal  Rates  from  Oak  Hills,  Colo.,  35  L  C.  C.  456; 
Texas  Cement  Plaster  Co.  v.  St.  Louis  &  S.  F.  R.  Co.,  26  L  C.  C. 
508,  510.  Dispute  over  divisions  no  justification  for  increasing 
rates.  New  Mexico  Coal  Rates,  28  L  C.  C.  328;  Missouri  River 
Illinois  Wheat  &  Flour  Rates,.*27  I.  C.  C.  286;  Advances  on 
Ground  Iron  Ore,  26  I.  C.  C.  675.  Divisions  established  with- 
out previously  fixing  joint  rates.  Louisville  Board  of  Trade  v. 
I.  C.  &  S.  Traction  Co.,  34  I.  C.  C.  640.  The  words  "or  other- 
wise" would  seem  to  make  clear  the  power  of  the  Commission 
in  all  cases  of  a  dispute  over  divisions. 

§  398.  Right  to  Suspend  Proposed  Increases  in  Rates. — 
Whenever  there  shall  be  filed  with  the  Commission  any  schedule 
stating  a  new  individual  or  joint  rate,  fare,  or  charge,  or  any  new 
individual  or  joint  classification,  or  any  new  individual  or  joint 
regulation  or  practice  affecting  any  rate,  fare,  or  charge,  the  Com- 
mission shall  have,  and  it  is  hereby  given,  authority,  either  upon 
complaint  or  upon  its  own  initiative  without  complaint,  at  once, 
and  if  it  sO  orders,  without  answer  or  other  formal  pleading  by 
the  interested  carrier  or  carriers,  but  upon  reasonable  notice,  to 
enter  upon  a  hearing  concerning  the  propriety  of  such  rate,  fare, 
charge,  classification,  regulation,  or  practice;  and  pending  such 
hearing  and  the  decision  thereon  the  Commission  upon  filing  with 
such  schedule  and  delivering  to  the  carrier  or  carriers  affected 
thereby  a  statement  in  writing  of  its  reasons  for  such  suspension 


586  Acts   Regulating   Commerce,  [§  398. 

may  suspend  the  operation  of  such  schedule  and  defer  the  use  of 
such  fare,  rate,  charge,  classification,  regulation,  or  practice,  but 
not  for  a  longer  period  than  one  hundred  and  twenty  days  be- 
yond the  time  when  such  rate,  fare,  charge,  classification,  regu- 
lation, or  practice  would  otherwise  go  into  efifect;  and  after  full 
hearing,  whether  completed  before  or  after  the  rate,  fare,  charge, 
classification,  regulation,  or  practice  goes  into  efifect,  the  Com- 
mission may  make  such  order  in  reference  to  such  rate,  fare, 
charge,  classification,  regulation,  or  practice  as  would  be  proper 
in  a  proceeding  initiated  after  the  rate,  fare,  charge,  classifica- 
tion, regulation,  or  practice  had  become  efifective :  Provided, 
That  if  any  such  hearing  can  not  be  concluded  within  the  period 
of  suspension,  as  above  stated,  the  Interstate  Commerce  Com- 
mission may,  in  its  discretion,  extend  the  time  of  suspension  for 
a  further  period  not  exceeding  six  months. 

This  is  a  new  provision  enacted  by  the  amendment  of  June  18, 
1910,  being  part  of  par.  2,  Sec.  15.  The  meaning  of  the  section 
discussed.  Advances  in  Rates,  Eastern  case,  20  I.  C.  C.  243, 
247,  248;  Advances  in  Rates,  Western  case,  20  I.  C.  C.  307,  310- 
314.  No  power  to  suspend  a  rate  already  effective.  Rates  on 
Lumber  by  V.  S.  &  P.  Ry.  Co.,  21  I.  C.  C.  16.  "Propriety"  of 
an  advance  considered.  Advances  in  Rates  on  Grain,  21  I.  C.  C. 
22,  24;  Wickwire  Steel  &  Wire  Co.  v.  N.  Y.  C.  &  H.  R.  R.  Co., 
30  I.  C.  C.  415,  420;  Coal  Rates  from  Oak  Hills,  Colo.,  30  I.  C.  C. 
505,  508.  The  Commission  has  the  power  to  suspend  reductions 
in  rates  in  any  case  where  such  suspension  will  operate  to  pre- 
vent an  apparent  discrimination.  Suspension. of  Rates  on  Pack- 
ing House  Products,  21  L  C.  C.  68,  70;  Coal  Rates  from  Oak 
Hills,  Colo.,  30  I.  C.  C.  505,  508.  In  the  last  named  case  it  was 
held  that  rates  decreased  are  new  rates.  Relative  Adjustment  of 
Rates  Considered.  Rates  of  Cement  from  Aid.  to  Va.,  24  I.  C.  C. 
290;  Rates  on  Barley  from  California,  24  I.  C.  C.  664,  669.  In 
re  Advance  in  Class  and  Commodity  Rates,  25  I.  C.  C.  401 ;  In 
re  Advance  in  Class  Rates,  25  I.  C.  C.  268  ;  In  re  Advances  on  Fur- 
niture, 25  I.  C.  C.  299;  \Miarton  Steel  Co.  z'.  D.  L.  &  W.  R.  R. 
Co.,  25  I.  C.  C.  303;  In  re  Advances  on  Oil,  25  I.  C.  C.  349;  In 
re  Advances  Knitting  Factory  Products,  25  I.  C.  C.  634;  In  re 
Advances  on  Alanganese  Ore,  25  I.  C.  C.  663 ;  Philadelphia  Ve- 
neer &  Lumber  Co.  v.  C.  R.  R.  Co.  of  N.  J.,  25  I.  C.  C.  653 ;  Ark- 
ansas Fertilizer  Co.  v.  St.  L.  I.  M.  &  S.  Ry.  Co.,  25  I.  C.  C.  645 : 
In  re  Advance  on  Hay,  25  I.  C.  C.  680 :  Taylor  z:  N.  &  W.  Ry. 


§  399.]  Annotated.  587 

Co..  25  I.  C.  C.  613;  Wichita  Board  of  Trade  v.  A.  T.  &  S.  F. 
Ry.  Co.,  25  I.  C.  C.  625 ;  Evens  &  Howard  Fire  Brick  Co.  v. 
St.  L.  I.  M.  &  S.  Ry.  Co.,  25  I.  C.  C.  141 ;  In  re  Advances  on 
Live  Stock,  2S  I.  C.  C.  63 ;  In  re  Advances  on  Hops,  25  I.  C.  C. 
16;  Superior  Commercial  Club  v.  G.  N.  Ry.  Co.,  25  I.  C.  C.  342. 
But  when  the  proposed  increase  does  not  change  the  adjustment 
the  relation  not  determined.  Grain  Rates  in  C.  F.  A.  Territory, 
28  I.  C.  O.  549,  557.  Proposed  rates  may  be  suspended  when 
they  create  unlawful  discrimination.  Wickwire  Steel  Co.  v.  N. 
Y.  C.  &  H.  R.  R.  Co.,  30  I.  C.  C.  415,  420.  The  Commission 
held  to  have  power  to  cancel  a  tariff  which  "affected  a  practice 
and  a  rate."  A.  T.  &  S.  F.  R.  Co.  v.  U.  S.,  "Precooling  Case," 
232  U.  S.  199,  58  L.  Ed.  568,  34  Sup.  Ct.  291,  affirming  same 
styled  case,  204  Fed.  647,  Op.  Com.  Ct.  No.  41,  p.  627.  For  re- 
port of  the  Commission  see  Arlington  Heights  Fruit  Exchange 
V.  S.  P.  Co.,  20  I.  C.  C.  106.  Suspension  Regulations  Relating 
to  Precooling,  23  I.  C.  C.  267.  The  "propriety"  of  a  rate  is  in 
issue  where  proposed  increased  rates  are  under  investigation, 
Wickwire  case  supra  and  Transcontinental  Commodity  Rates, 
32  I.  C.  C.  449.  Whether  the  existence  of  lower  intrastate  rates 
should  be  a  sufficient  reason  to  refuse  increased  rates  otherwise 
just  and  reasonable  is  an  unsettled  question.  The  practice  of 
the  Commission  has  been  to  presume  that  state  rates  will  be  ad- 
justed and  if  not  the  question  should  properly  be  determined  on 
a  formal  complaint. 

Rates  on  .poultry  in  Western  Trunk  Line  Territory,  32  I.  C. 
C.  380;  Five  Per  Cent  case,  31  I.  C.  C.  355;  Corp.  Com.  of  Okla. 
V.  A.  T.  &  S.  F.  R.  Co.,  31  I.  C.  C.  532,  540,  541 ;  Rates  on  Beer 
and  Other  Malt  Products,  31  I.  C.  C.  544.  Dissenting  Opin.  West- 
ern Advance  Rate  case,  35  I.  C.  C.  668  et.  seq. 

Seemingly  applying  a  contrary  principle,  see  Class  Rates  be- 
tween Stations  in  La.,  33  I.  C.  C.  302;  Western  Rate  Advance 
Case  1915,  35  I.  C.  C.  497;  Live  Stock  Rates  from  Colo.,  35 
I.  C.  C.  682. 

§  399.  Burden  of  Proof  to  Justify  Rates  Increased  after 
Jan.  1,  1910. — At  any  hearing  involving  a  rate  increased  after 
January  first,  nineteen  hundred  and  ten,  or  of  a  rate  sought  to 
be  increased  after  the  passage  of  this  act,  the  burden  of  proof 
to  show  that  the  increased  rate  or  proposed  increased  rate  is  just 
and  reasonable  shall  be  upon  the  common  carrier,  and  the  Com- 
mission shall  give  to  the  hearing  and  decision  of  such  questions 


588  Acts  Regulating  Commerce,  [§  399. 

preference  over  all  other  questions  pending  before  it  and  decide 
the  same  as  speedily  as  possible. 

Part  of  Paragraph  2  Section  15  added  by  amendment  of  June 
18,  1910. 

Prior  to  this  amendment  the  Commission  had  held  with  more 
or  less  definiteness  that  a  rate  long  in  existence  was  presumed 
to  be  reasonable,  Sec.  102  ante.  This  amendment  is  discussed 
by  the  Commission  in  Advance  in  Rates — Eastern  case,  20  I.  C. 
C.  243.  Advances  in  Rates— Western  case,  20  I.  C.  C.  307,  314, 
315,  316.  At  p.  315  of  the  report  in  the  last  named  proceeding 
the  Commission  held  that  "burden  of  proof"  did  not  have  the 
same  technical  meaning  given  the  phrase  in  the  courts  of  law, 
and  the  Commission  said :  "In  accepting  this  theory,  therefore, 
it  is  not  within  belief  that  Congress  intended  by  the  language  now 
under  consideration  to  convert  this  Commission  into  a  tribunal 
which  should  merely  determine  as  between  two  sides  the  prepon- 
derance of  evidence  and  base  its  decisions  upon  technical  and 
somewhat  archaic  rules  of  evidence."  "The  railroad  must  as- 
sume to  prove  to  this  Commission  that  the  new  and  the  increased 
rates  are  within  the  words  of  description  and  limitation  used 
in  the  act;  that  is,  that  they  are  just  and  reasonable.  And 
to  say  that  they  must  prove  this  is  to  say  that  they  must  satisfy 
our  minds  of  this  fact." 

General  adjustment  left  to  the  carrier  when  rates  proposed 
to  be  increased  were  cancelled.  Advances  in  Rate  on  Grain,  21 
I.  C.  C.  22,  35.  When  no  testimony  is  offered  burden  not  met. 
Rates  for  Transportation  of  Locomotives,  21  I.  C.  C.  103,  111. 
Proof  of  increased  cost  of  transportation  should  be  directed 
to  the  particular  transportation  affected  by  the  proposed  increase. 
Victor  Mfg.  Co.  V.  S.  Ry.  Co.,  21  I.  C.  C.  222,  226.  Advance  of 
Commodity  Rate  under  claim  that  such  rate  was  not  properly 
proportioned  to  all  rates  considered.  U.  S.  Leather  Co.  z>.  So. 
Ry.  Co.,  21  I.  C.  C.  323,  325.  Cancellation  of  a  through  rate, 
leaving  a  combination  of  locals  higher  than  the  through  rate  puts 
the  burden  on  the  carrier.  Rates  on  Lumber  and  Other  Forest 
Products,  21  L  C.  C.  455.  Suspensions  of  Advances  on  Soft 
Coal,  23  I.  C.  C.  518,  519.  Burden  on  carrier  to  justify  in- 
creased car  load  minimum.  Advance  in  Rates  on  Potatoes.  23 
L  C.  C.  69.  Statement  made  that  admission  of  complainant  re- 
lieved defendant  of  burden  of  proof.  Wisconsin  State  Millers' 
Ass'n  V.  C.  M.  &  St.  P.  Ry.  Co.,  23  I.  C.  C.  494,  495.     Refusal 


§  400.]  Annotated.  589 

of  one  carrier  to  accept  for  a  through  haul  less  than  its  full 
locals  fails  to  meet  the  burden  of  proof.  Advance  in  Rates 
on  Cement  from  Md.  to  Va.,  24  I.  C.  C.  290,  291.  Discrim- 
inatory increased  charges  cancelled.  Switching  Ice  in  Chicago, 
24  I.  C.  C.  660.  That  an  advance  is  of  no  "great  consequence" 
does  not  relieve  from  the  statute.  Rates  on  Corn,  Oats  and 
Other  Feed,  25  I.  C.  C.  46.  The  burden  of  proof  applies  to  the 
total  charges  and  the  separately  stated  charges  which  make  the 
total.  Pacific  Fuel  &  Supply  Co.  v.  G.  T.  W.  Ry.  Co.,  27  I.  C. 
C.  24.  Notwithstanding  the  statute,  parties  who  obtain  a  suspen- 
sion of  rates  should  present  facts  to  the  Commission.  Com- 
modity Rates  between  Missouri  River  Points,  28  I.  C.  C.  265, 
267.  "Statements  of  earnings  per  ton  mile  and  suggestions  of 
increased  general  operating  expenses"  not  sufficient.  Kansas- 
Iowa  Brick  Rates,  28  I.  C.  C.  285,  287.  Existing  contracts  for 
lower  rates  will  not  prevent  an  increase  in  rates.  Rates  on 
Carload  Stone,  29  I.  C.  C.  136.  The  theory  of  equalization  of 
rates  not  sufficient  here.  Wickwire  Steel  Co.  v.  N.  Y.  C.  &  H.  R. 
R.  Co.,  30  I.  C.  C.  415,  419.  Statute  discussed.  Five  Per  Cent 
case,  31  I.  C.  C.  351,  448.  That  a  commodity  usually  takes  a 
class  rate  justifies  increasing  the  rate  to  the  class  basis.  Rates 
on  Beer  and  other  IMalt  Products,  31  I.  C.  C.  544.  Not  applied 
when  rates  were  increased  to  the  point  where  they  normally  had 
been.  Corp.  Com.  of  Okla.  v.  A.  T.  &  S.  F.  Ry.  Co.,  31  I.  C.  C. 
532,  535,  536.  Here  the  charge  was  increased  and  the  burden  of 
proof  was  on  the  carriers.  Empire  Coke  Co.  z'.  B.  &  S.  R.  R.  Co., 
31  I.  C.  C.  573,  582.  Cases  discussed.  East  J.  R.  Co.  v.  C.  R.  R. 
of  N.  J.,  36  I.  C.  C.  146. 

§  400.  Through  Routes  and  Joint  Rates  May  Be  Estab- 
lished by  the  Commission. — The  Commission  may  also,  after 
hearing,  on  a  complaint  or  upon  its  own  initiative  without  com- 
plaint establish  through  routes  and  joint  classifications,  and  may 
establish  joint  rates  as  the  maximum  to  be  charged  and  may  pre- 
scribe the  division  of  such  rates  as  hereinbefore  provided  and  the 
terms  and  conditions  under  which  such  through  routes  shall  be 
operated,  whenever  the  carriers  themselves  shall  have  refused  or 
neglected  to  establish  voluntarily  such  through  routes  or  joint  clas- 
sifications or  joint  rates;  and  this  provision  shall  apply  when  one 
of  the  connecting  carriers  is  a  water  line.  The  Commission  shall 
not,  however,  establish  any  through  route,  classification,  or  rate 
between  street  electric  passenger  railways  not  engaged  in  the  gen- 


590  Acts  Regulating  Commerce,  [§  400. 

eral  business  of  transporting  freight  in  addition  to  their  passen- 
ger and  express  business  and  railroads  of  a  different  character, 
nor  shall  the  Commission  have  the  right  to  establish  any  route, 
classification,  rate,  fare,  or  charge  when  the  transportation  is 
wholly  by  water,  and  any  transportation  by  water  afifected  by  this 
act  shall  be  subject  to  the  laws  and  regulations  applicable  to 
transportation  by  water. 

Par.  3  of  Sec.  15  as  amended  by  act  June  18,  1910.  The  old 
law  read : 

The  Commission  may  also,  after  hearing  on  a  complaint,  es- 
tablish through  routes  and  joint  rates  as  the  maximum  to  be 
charged  and  prescribe  the  division  of  such  rates  as  hereinbe- 
fore provided,  and  the  terms  and  conditions  under  which  such 
through  routes  shall  be  operated,  when  that  may  be  necessary 
to  give  effect  to  any  provision  of  this  act,  and  the  carriers  com- 
plained of  have  refused  or  neglected  to  voluntarily  establish  such 
through  routes  and  joint  rates,  provided  no  reasonable  or  satis- 
factory through  route  exists,  and  this  provision  shall  apply  when 
one  of  the  connecting  carriers  is  a  water  line. 

Second  paragraph  of  section  fifteen  added  by  act  June  29, 
1906. 

The  power  conferred  by  this  section  did  not  exist  until  this 
amendment  was  passed.  See  annotation  next  preceding  section. 
The  proviso  to  this  section  prevents  new  lines  from  forcing  joint 
traffic  arrangements  when  satisfactory  through  routes  exist.  Chi- 
cago &  ^1.  Elec.  R.  Co.  V.  111.  Cent.  R.  Co.,  13  I.  C.  C.  20. 
Through  route  established  under  this  section.  Pacific  Coast 
Lumber  Mfgrs.  Asso.-t'.  N.  Pac.  Ry.  Co.,  14  I.  C.  C.  51;  Enter- 
prise Fuel  Co.  V.  Penn.  R.  Co.,  16  I.  C.  C.  219,  220,  222. 

Notes  of  Decisions  Rendered  Since  1909. 

Former  and  present  statutes  compared.  C.  &  C.  Traction  Co.  z'. 
B.  &  O.  S.  W.  R.  R.  Co.,  20  I.  C.  C.  486.  Section  quoted  and 
discussed.  Brook-Rauch  Mill  &  Elevator  Co.  v.  St.  L.  I.  M.  & 
S.  Ry.  Co.,  21  I.  C.  C.  651,  654.  Statute  discussed  and  decisions 
under  the  common  law  cited.  Mobile  Chamber  of  Commerce  v. 
M.  &  O.  R.  R.  Co.,  23  I.  C.  C.  417,  421.  "Railroads  of  a  dif- 
ferent character"  and  "through  route"  defined.  Kansas  City  v. 
K.  C.  V.  &  T.  Ry.  Co.,  24  I.  C.  C.  22,  26.  The  Commission  has  a 
discretion  under  the  amendment.  Flour  City  S.  S.  Co.  z'.  L.  V. 
R.  R.  Co.,  24  I.  C.  C.  179,  18^;  Crane  Iron  \\'orks  t-.  U.  S.,  209 


§  401.]  .  Annotated.  591 

Fed.  238,  Op.  Com.  Ct.  No.  55,  p.  453.  See  Crane  R.  R.  Co.  v. 
P.  &  R.  Ry.  Co.,  15  I.  C.  C.  248;  Crane  Iron  Works  v.  C.  R.  R. 
Co.  of  N.  J.,  17  I.  C.  C.  514;  Truckers  Transfer  Co.  v.  C.  &  W. 
C.  R.  R.  Co.,  27  I.  C.  C.  275,  277. 

Section  cited:  Wichita  Falls  System  Joint  Coal  Rate  cases, 
26  I.  C.  C.  215,  222;  St.  L.  &  St.  P.  R.  R.  Co.  v.  P.  &  P.  N. 
Ry.  Co.,  26  I.  C.  C.  226,  234;  Texas  Cement.  Products  Co.  v.  St. 
L.  &  S.  F.  R.  R.  Co.,  26  I.  C.  C.  508,  510.  Lumber  Rates  from 
Texas,  28  I.  C.  C.  471,  473;  Rates  on  Lumber  and  Other  Forest 
Products,  30  I.  C.  C.  371,  ?)72.  No  connection  ordered  with  a 
plant  facility.  Alfgrs.  Ry.  Co.  v.  St.  L.  L  M.  &  S.  Ry.  Co.,  28 
L  C.  C.  93,  120.  The  grant  of  this  authority  contemplates  the 
exercise  of  judgment.  Merchants  &  Mfgrs.  Ass'n  v.  C.  R.  R.  of 
N.  J.,  30  L  C.  C.  396,  401,  citing  cases.  The  practice  of  the  Com- 
mission stated,  citing  cases.  Decatur  Navigation  Co.  v.  L.  &  N. 
R.  R.  Co.,  31  L  C.  C.  281,  287.  An  order  of  the  Commission  made 
prior  to  the  efifective  date  of  the  amendment  of  1910  can  not  be 
made  effective  by  the  courts  under  that  amendment.  Omaha  & 
C.  B.  St.  Ry.  Co.  V.  Int.  Com.  Com.,  230  U.  S.  324,  57  L.  Ed. 
1501,  ZZ  Sup.  Ct.  890,  46  L.  R.  A.  (N.  S.)  385;  reversing  same 
styled  case,  191  Fed.  40,  Opin.  Com.  Ct.  No.  25,  p.  147.  See 
further  history  of  this  case :  West  End  Improvement  Club  v. 
O.  C.  B.  Ry.  &  Bridge  Co.,  17  I.  C.  C.  239;  O.  &  C.  B.  St.  Ry.  & 
Bridge  Co.  v.  I.  C.  C,  179  Fed.  243.  Limitation  under  former 
statute  discussed.  Int.  Com.  Com.  v.  N.  P.  R.  Co.,  216  U.  S.  538, 
54  L.  Ed.  608,  30  Sup.  Ct.  417.    See  Sec.  338,  supra. 

§  401.  Limitation  on  the  Power  to  Prescribe  Through 
Routes. — And  in  establishing  such  through  route,  the  Commis- 
sion shall  not  require  any  company,  without  its  consent,  to  em- 
brace in  such  route  substantially  less  than  the  entire  length  of 
its  railroad  and  of  any  intermediate  railroad  operated  in  conjunc- 
tion and  under  a  common  management  or  control  therewith  which 
lies  between  the  termini  of  such  proposed  through  route,  unless 
to  do  so  would  make  such  through  route  unreasonably  long  as 
compared  with  another  practicable  through  route  which  could 
otherwise  be  established. 

Par.  3,  Sec.  15,  added  by  amendment  of  June  18,  1910.  Limi- 
tation stated,  Cincinnati  &  Traction  Co.  v.  B.  &  O.  S.  W.  R.  R. 
Co.,  20  I.  C.  C.  486,  492.  The  Commission  must  work  under  the 
limitation  imposed.     Rates  on  Meats,  23  I.  C.  C.  656,  662.    The 


592  Acts  Regulating  Commerce,  [§  402. 

law  recognizes  the  right  of  the  carrier  to  protect  its  own  haul. 
Chamber  of  Commerce  of  X.  Y.  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  24  I. 
C.  C.  55,  76.  Limitation  applied.  Davis  Bros.  Lumber  Co.  v.  C. 
R.  L  &  P.  Ry.  Co.,  26  L  C.  C.  257,  259.  This  section  gives  the  car- 
rier no  right  "to  exclude  from  points  of  consumption  on  its  line 
manufacturers  located  elsewhere."  Meridan  Fertilizer  Factory 
V.  T.  P.  Ry.  Co.,  26- L  C.  C.  35 L  352.  Route  found  unreasonably 
long.  Omaha  Grain  Exchange  z*.  C.  B.  &  0.  R.  R.  Co.,  26  L  C. 
C.  553,  557;  United  States  v.  N.  P.  R.  R.  Co.,  28  L  C.  C.  518, 
523;  Hughes  Creek  C.  Co.  v.  K.  &  M.  Ry.  Co.,  29  L  C.  C.  671, 
679.  Does  not  apply  to  making  joint  rates,  through  routes  hav- 
ing been  voluntarily  established.  Rates  on  Cotton  Seed  and  Its 
Products,  28  L  C.  C.  219,  221 ;  Lumber  Rates  'Oregon  &  Wash- 
ington to  Eastern  Points,  29  L  C.  C.  609.  Cancellation  of  through 
routes  not  justified.  Lumber  Rate  from  North  Pacific  Coast 
Points,  30  LC.  C.  111.  Section  applied.  Cement  Rates  from 
Mason  City,  Iowa,  30  I.  C.  C.  426,  430.  This  limitation  does  not 
prevent  ordering  through  routes  with  another  carrier  w^hen  such 
through  routes  have  been  voluntarily  established  with  one  car- 
rier. Pacific  Xav.  Co.  z:  S.  P.  Co.,  31  I.  C.  C.  472.  Carriers 
can  not  insist  on  this  Section  when  they  have  voluntarily  estab- 
lished one  through  route  or  when  to  deny  a  through  route  would 
continue  an  unjust  discrimination.  Decatur  Xav.  Co.  v.  L.  &  X^. 
R.  Co.,  31  I.  C.  C.  281 ;  Pacific  Xav.  Co.  v.  S.  P.  Co.,  31  I.  C.  C. 
472 ;  Eastern  Shore  Develop.  S.  S.  Co.  v.  B.  &  O.  R.  Co.,  32  I. 
C.  C.  238;  U.  S.  Button  Co.  v.  C.  R.  I.  &  P.  Ry.  Co.,  32  I.  C. 
C.  149;  Penn.  Co.  v.  U.  S.,  236  U.  S.  351,  59  L.  Ed.  —  35  Sup. 
Ct.  370.  Switching  may  be  ordered  for  one  shipper  only.  Union 
Lime  Co.  v.  C.  &  X.  \V.  R.  Co.,  233  U.  S.  211,  58  L.  Ed.  924, 
34  Sup.  Ct.  522. 

Carriers  may  cancel  through  routes  which  they  could  not  have 
been  compelled  to  establish.  The  Ogden  Gateway  case,  35  I.  C. 
C.  131. 

§  402.  Shippers  May  Designate  Routing. — In  all  cases 
where  at  the  time  of  delivery  of  property  to  any  railroad  corpora- 
tion being  a  common  carrier,  for  transportation  subject  to  the 
provisions  of  this  act  to  any  point  of  destination,  between  which 
and  the  point  of  such  delivery  for  shipment  two  or  more  through 
routes  and  through  rates  shall  have  been  established  as  in  this 
act  provided  to  which  through  routes  and  through  rates  such 
carrier  is  a  party,  the  person,  firm,  or  corporation  making  such 


§  403.]  Annotated.  593 

shipment,  subject  to  such  reasonable  exceptions  and  regulations 
as  the  Interstate  Commerce  Commission  shall  from  time  to  time 
prescribe,  shall  have  the  right  to  designate  in  writing  by  which 
of  such  through  routes  such  property  shall  be  transported  to  des- 
tination, and  it  shall  thereupon  be  the  duty  of  the  initial  carrier 
to  route  said  property  and  issue  a  through  bill  of  lading  therefor 
as  so  directed,  and  to  transport  said  property  over  its  own  line 
or  lines  and  deliver  the  same  to  a  connecting  line  or  lines  accord- 
ing to  such  through  route,  and  it  shall  be  the  duty  of  each  of 
said  connecting  carriers  to  receive  said  property  and  transport 
it  over  the  said  line  or  lines  and  deliver  the  same  to  the  next 
succeeding  carrier  or  consignee  according  to  the  routing  instruc- 
tions in  said  bill  of  lading:  Provided,  hozvever,  That  the  ship- 
per shall  in  all  instances  have  the  right  to  determine,  where  com- 
peting lines  of  railroad  constitute  portions  of  a  through  line  or 
route,  over  which  of  said  competing  lines  so  constituting  a  por- 
tion of  said  through  line  or  route  his  freight  shall  be  transported. 

Par.  4  Sec.  15  added  by  the  amendment  of  June  18,  1910. 

Ruling  under  prior  law  stated  and  held  that  tariff  provisions 
can  not  exempt  the  carrier  from  the  duty  imposed  bv  this  law. 
Weyl-Zuckerman  &  Co.  v.  C.  M.  Ry.  Co.,  27  I.  C.  C.  493,  495. 

§  403.  Unlawful  to  Give  or  Receive  Information  Rela- 
tive to  Shipments. — It  shall  be  unlawful  for  any  common  car- 
rier subject  to  the  provisions  of  this  act,  or  any  officer,  agent,  or 
employee  of  such  common  carrier,  or  for  any  other  person  or 
corporation  lawfully  authorized  by  such  common  carrier  to  re- 
ceive information  therefrom,  knowingly  to  disclose  or  to  permit 
to  be  acquired  by  any  person  or  corporation  other  than  the  ship- 
per or  consignee,  without  the  consent  of  such  shipper  or  con- 
signee, any  information  concerning  the  nature,  kind,  quantity, 
destination,  consignee,  or  routing  of  any  property  tendered  or  de- 
livered to  such  common  carrier  for  interstate  transportation, 
which  information  may  be  used  to  the  detriment  or  prejudice  of 
such  shipper  or  consignee,  or  which  may  improperly  disclose  his 
business  transactions  to  a  competitor ;  and  it  shall  also  be  un- 
lawful for  any  person  or  corporation  to  solicit  or  knowingly  re- 
ceive any  such  information  which  may  be  so  used:  Provided, 
That  nothing  in  this  act  shall  be  construed  to  prevent  the  giving 
of  such  information  in  response  to  any  legal  process  issued  un- 
der the  authority  of  any  state  or  federal  court,  or  to  any  officer 
or  agent  of  the  Government  of  the  United  States,  or  of  any  state 


594  Acts  Regulating  Commerce,  [§  404. 

or  territory,  in  the  exercise  of  his  powers,  or  to  any  officer  or 
other  duly  authorized  person  seeking  such  information  for  the 
prosecution  of  persons  charged  with  or  suspected  of  crime;  or 
information  given  hy  a  common  carrier  to  another  carrier  or 
its  duly  authorized  agent,  for  the  purpose  of  adjusting  mutual 
traffic  accounts  in  the  ordinary  course  of  business  of  such  car- 
riers. 

Any  person,  corporation,  or  association  violating  any  of  the 
provisions  of  the  next  preceding  paragraph  of  this  section  shall 
be  deemed  guilty  of  a  misdemeanor,  and  for  each  offense,  on 
conviction,  shall  pay  to  the  United  States  a  penalty  of  not  more 
than  one  thousand  dollars. 

Paragraphs  5  and  6  Sec.  15  added  by  the  amendment  of  June 
18,  1910.  This  section  indicates  a  legislative  intent  to  secure 
shippers  immunity  from  a  disclosure  of  their  business.  Albree 
V.  M.  R.  R.  Co.,  22  I.  C.  C.  303,  321.  Possible  violation  of  Sec- 
tion suggested.  Concentration  of  Cotton,  26  I.  C.  C.  585,  593. 
Purpose  of  Section  discussed,  citing  Conference  Ruling  356;  Re 
Freight  Bills,  29  I.  C.  C.  496,  498. 

§  404.  Charges  for  Instrumentalities  Furnished  by 
Shipper  Must  Be  Reasonable. — If  the  owner  of  property 
transported  under  this  act  directly  or  indirectly  renders  any 
service  connected  with  such  transportation,  or  furnishes  any  in- 
strumentality used  therein,  the  charge  and  allowance  therefor 
shall  be  no  more  than  is  just  and  reasonable,  and  the  Commission 
may,  after  hearing  on  a  complaint  or  on  its  ozvn  i)iitiative,  de- 
termine what  is  a  reasonable  charge  as  the  maximum  to  be  paid 
by  the  carrier  or  carriers  for  the  service  so  rendered  or  for  the 
use  of  the  instrumentality  so  furnished,  and  fix  the  same  by  ap- 
propriate order,  which  order  shall  have  the  same  force  and  effect 
to  be  enforced  in  like  manner  as  the  orders  above  provided  for 
under  this  section. 

Paragraph  7  of  Sec.  15  added  by  amendment  of  June  29,  1906 
and  the  words  italicized  added  by  the  amendment  of  June  18, 
1910. 

Storage  and  switching  tracks  within  the  inclosure  of  the  ship- 
per and  established  for  his  convenience  will  not  furnish  a  basis 
for  the  shipper's  claim  for  compensation  for  storing  cars  under 
this  section.  General  Elec.  Co.  v.  New  York  C.  &  H.  R.  R.  Co., 
14  I.  C.  C.  237,  242. 


§  404.]  Annotated.  595 

Notes  of  Decisions  Rendered  Since  1909. 

Matter  of  Allowances,  12  I.  C.  C.  55,  quoted  as  referring  to 
the  Statute.  Federal  Sugar  Refining  v.  B.  &  O.  R.  R.  Co.,  17 
T.  C.  C.  40,  47.  The  section  has  no  application  to  a  warehouse 
company  not  the  owner  of  the  commodity  shipped.  Merchants 
Cotton  Compress  &  Storage  Co.  v.  I.  C.  R.  R.  Co.,  17  I.  C.  C.  98, 
105.  Such  allowances  must  be  without  discrimination.  Federal 
Sugar  Refining  Co.  v.  B.  &  O.  R.  R.  Co.,  20  I.  C.  C.  200.  Cases 
discussing  allowances  cited  and  former  holdings  adhered  to.  Man- 
ufacturing Ry.  Co.  V.  St.  L.  I.  M.  &  S.  Ry.  Co.,  21  I.  C.  C.  304, 
315.  Claims  for  allowances  should  be  submitted  to  the  Com- 
mission. Sterling  &  Son  Co.  v.  M.  C.  R.  R.  Co.,  21  I.  C.  C.  451, 
454.  Allowances  for  repairs  on  cars  are  of  a  dangerous  charac- 
ter. Balfour,  Guthrie  &  Co.  r.  O.  W.  R.  R.  &  Nav.  Co.,  21  I. 
C.  C.  539,  540.  Allowances  to  industries  discussed.  Manufac- 
turers Ry.  Co.  V.  St.  L.  I.  M.  &  S.  Ry.  Co.,  28  I.  C.  C.  93,  101, 
102.  "Connected  with  such  transportation"  defined.  Inman, 
Akers  &  Inman  v.  A.  C.  L.  R.  Co.,  32  I.  C.  C.  146.  Statute  ap- 
plied and  allowances  held  legal.  Union  Pac.  R.  Co.  v.  Updike 
Grain  Co.,  222  U.  S.  215,  56  L.  Ed.  171,  32  Sup.  Ct.  39;  Int. 
Com.  Com.  v.  Diffenbaugh,  222  U.  S.  42,  56  L.  Ed.  83,  32  Sup. 
Ct.  22.  The  amount  of  the  allowance  must  be  reasonable,  and 
what  is  reasonable  a  question  to  be  determined  by  the  Commis- 
sion. Mitchell  Coal  &  Coke  Co.  v.  P.  R.  Co.,  230  U.  S.  247,  57 
Tv.  Ed.  1472,  33  Sup.  Ct.  916.  The  question  is  discussed  in  the 
several  opinions  and  reports  in  the  Sugar  Lighterage  case. 
United  States  z'.  B.  &  O.  R.  Co.,  231  U.  S.  274,  58  L.  Ed.  218,  34 
Sup.  Ct.  75,  affirming  B.  &  O.  R.  Co.  v.  United  States,  200  Fed. 
779,  Op.  Com.  Ct.  No.  38,  p.  499,  and  setting  aside  the  order  of 
the  Commission  in  the  Federal  Sugar  Refining  Co.  v.  B.  &  O.  R. 
Co.,  20  I.  C.  C.  200.  See  the  related  case  of  the  Am.  Sugar  Re- 
fining Co.  V.  D.  L.  &  W.  Ry.  Co.,  200  Fed.  652,  reversed  Amer- 
ican Sugar  Refining  Co.  v.  D.  L.  &  W.  R.  Co.,  207  Fed.  733, 
125  C.  C.  A.  251.  The  Tap  Line  case  involved  the  question, 
United  States  v.  L.  &  P.  R.  Co.,  234  U.  S.  1,  58  L.  Ed.  1185,  34 
Sup.  Ct.  741 ;  Louisiana  &  P.  Ry.  Co.  v.  United  States,  209  Fed. 
244,  Op.  Com.  Ct.  Xo.  90,  p.  709;  The  Tap  Line  case,  23  I.  C.  C. 
277,  549,  31  I.  C.  C.  490.  The  i)rovision  does  not  apply  where 
rate  contracted  on  the  theory  that  the  shipper  shall  furnish  the 
instrumentality.     Best  v.  G.  N.  Ry.  Co.,  33  I.  C.  C.  1,  4. 


596  Acts  Regulating  Commerce,  [§  405. 

§  405.  Enumeration  of  Powers  of  Commission  Not  Ex- 
clusive.— The  foregoing  enumeration  of  powers  shall  not  ex- 
clude an}^  power  which  the  Commission  would  otherwise  have  in 
the  making  of  an  order  under  the  provisions  of  this  act. 

Last    paragraph  of  section  fifteen  added  by  act  June  29,  1906. 

The  statute  gives  shippers  new  rights  but  preserves  existing 
rights.  Copp  V.  L.  &  N.  R.  Co.,  43  La.  Ann.  511,  12  L.  R.  A. 
725,  26  Am.  St.  Rep.  198,  9  So.  441 ;  Carlisle  r.  Mo.  Pac.  R. 
Co.,  168  Mo.  656,  68  S.  W.  898;  Western  &  A.  R.  Co.  z:  White 

Provision  Co., Ga. ,  82  S.  E.  644;  Gulf,  C.  &  S.  F.  R. 

Co.  V.  Moore,  98  Tex.  302.  83  S.  W.  362,  4  Ann.  Cas.  770 ;  Pur- 
itan Coal  Min.  Co.  v.  Penn'a  R.  Co.,  237  Pa.  448,  85  Atl.  426, 
Ann.  Cas.  1914B,  37:  Mitchell  Coal  &  Coke  Co.  v.  Penn'a  R. 
Co.,  230  V.  S.  247,  57  L.  Ed.  1473,  33  Sup.  Ct.  Rep.  916. 

Compare  Texas  &  P.  R.  Co.  v.  Abilene  Cotton  Oil  Co.,  204  U. 
S.  426,  439-446,  51  L.  Ed.  553,  561,  27  Sup.  Ct.  Rep.  350,  9  Ann. 
Cas.  1075 ;  Robinson  r.  B.  &  O.  R.  Co.,  222  U.  S.  506,  56  L.  Ed. 
288,  32  Sup.  Ct.  Rep.  114;  36  Stat,  at  L.  551  (15),  chap.  309, 
Comp.  Stat.  1913,  Sec.  8583;  38  Stat,  at  L.  220,  chap.  32.  Penn. 

R.  Co.  v.  Puritan  Coal  Mining  Co.,  237  U.  S.  121.  59  L.  Ed. , 

35  Sup.  Ct.  484,  486.  487.  111.  C.  R.  Co.  t-.  ^Mulberry  Hill  Coal 
Co.,  238  U.  S.  275,  59  L.  Ed. ,  35  Sup.  Ct.  760,  763. 

§  406.  Award  of  Damages  Shall  Be  Made  by  Commis- 
sion after  Hearing-. — That  if,  after  hearing  on  a  complaint 
made  as  provided  in  section  thirteen  of  this  act,  the  Commission 
shall  determine  that  any  party  complainant  is  entitled  to  an 
award  of  damages  under  the  provisions  of  this  act  for  a  viola- 
tion thereof,  the  Commission  shall  make  an  order  directing  the 
carrier  to  pay  to  the  complainant  the  sum  to  which  he  is  entitled 
on  or  before  a  day  named. 

First  paragraph  of  section  sixteen  as  it  now  exists  is  an 
amendment  passed  June  29,  1906. 

The  original  section  read  : 

"That  whenever  any  common  carrier,  as  defined  in  and  sub- 
ject to  the  provisions  of  this  act,  shall  violate  or  refuse  or  neg- 
lect to  obey  any  lawful  order  or  requirement  of  the  Commission 
in  this  act  named,  it  shall  be  the  duty  of  the  Commission,  and 
lawful  for  any  company  or  person  interested  in  such  order  or 
requirement,  to  apply,  in  a  summary  way,  by  petition,  to  the 
circuit  court  of  the  United  States  sitting  in  equity  in  the  judicial 
district  in  which  the  common  carrier  complained  of  has  its  prin- 


§  406.]  Annotated.  •  597 

cipal  office,  or  in  which  the  violation  or  disobedience  of  such 
order  or  requirement  shall  happen,  alleging  such  violation  or 
disobedience,  as  the  case  may  be ;  and  the  said  court  shall  have 
power  to  hear  and  determine  the  matter,  on  such  short  notice  to 
the  common  carrier  complained  of  as  the  court  shall  deem  rea- 
sonable ;  and  such  notice  may  be  served  on  such  common  carrier, 
his  or  its  officers,  agents,  or  servants,  in  such  manner  as  the 
court  shall  direct ;  and  said  court  shall  proceed  to  hear  and  de- 
termine the  matter  speedily  as  a  court  of  equity,  and  without 
the  formal  pleadings  and  proceedings  applicable  to  ordinary 
suits  in  equity,  but  in  such  manner  as  to  do  justice  in  the  prem- 
ises ;  and  to  this  end  such  court  shall  have  power,  if  it  think  fit, 
to  direct  and  prosecute,  in  such  mode  and  by  such  persons  as  it 
may  appoint,  all  such  inquiries  as  the  court  may  think  needful 
to  enable  it  to  form  a  just  judgment  in  the  matter  of  such 
petition ;  and  on  such  hearing  the  report  of  said  Commission  shall 
be  prima  facie  evidence  of  the  matters  therein  stated ;  and  if  it 
be  made  to  appear  to  such  court,  on  such  hearing  or  on  report 
of  any  such  person  or  persons,  that  the  lawful  order  or  require- 
ment of  said  Commission  drawn  in  question  has  been  violated  or 
disobeyed,  it  shall  be  lawful  for  such  court  to  issue  a  writ  of  in- 
junction or  other  proper  process,  mandatory  or  otherwise,  to  re- 
strain such  common  carrier  from  further  continuing  such  viola- 
tion or  disobedience  of  such  order  or  requirement  of  said  Com- 
mission, and  enjoining  obedience  to  the  same ;  and  in  case  of  any 
disobedience  of  any  such  writ  of  injunction  or  other  proper  proc- 
ess, mandatory  or  otherwise,  it  shall  be  lawful  for  such  court 
to  issue  writs  of  attachment,  or  any  other  process  of  said  court 
incident  or  applicable  to  writs  of  injunction  or  other  proper  proc- 
ess, mandatory  or  otherwise,  against  such  common  carrier,  and 
if  a  corporation,  against  one  or  more  of  the  directors,  officers, 
or  agents  of  the  same,  or  against  any  owner,  lessee,  trustee,  re- 
ceiver, or  other  person  failing  to  obey  such  writ  of  injunction 
or  other  proper  process,  mandatory  or  otherwise ;  and  said  court 
may,  if  it  shall  think  fit,  make  an  order  directing  such  common 
carrier  or  other  person  so  disobeying  such  writ  of  injunction  or 
other  proper  process,  mandatory  or  otherwise,  to  pay  such  sum 
of  money  not  exceeding  for  each  carrier  or  person  in  default  the 
sum  of  five  hundred  dollars  for  every  day  after  a  day  to  be 
named  in  the  order  that  such  carrier  or  other  person  shall  fail 
to  obey  such  injunction  or  other  proper  process,  mandatory  or 


598  Acts  Regulating  Comme:rce,  [§  406. 

otherwise ;  and  such  moneys  shall  be  payable  as  the  court  shall 
direct,  either  to  the  party  complaining,  or  into  court  to  abide  the 
ultimate  decision  of  the  court,  or  into  the  treasury ;  and  payment 
thereof  may,  without  prejudice  to  any  other  mode  of  recovering 
the  same  be  enforced  by  attachment  or  order  in  the  nature  of 
a  writ  of  execution,  in  like  manner  as  if  the  same  had  been  re- 
covered by  a  final  decree  in  personam  in  such  court.  When  the 
subject  in  dispute  shall  be  of  the  value  of  two  thousand  dol- 
lars or  more,  either  party  to  such  proceeding  before  said  court 
may  appeal  to  the  Supreme  Court  of  the  United  States,  under 
the  same  regulations  now  provided  by  law  in  respect  of  security 
for  such  appeal;  but  such  appeal  shall  not  operate  to  stay  or  su- 
persede the  order  of  the  court  or  the  execution  of  any  writ  or 
process  thereon ;  and  such  court  may,  in  every  such  matter,  order 
the  payment  of  such  costs  and  counsel  fees  as  shall  be  deemed 
reasonable.  Whenever  any  such  petition  shall  be  filed  or  pre- 
sented by  the  Commission  it  shall  be  the  duty  of  the  district  at- 
torney, under  the  direction  of  the  Attorney-General  of  the 
United  States,  to  prosecute  the  same ;  and  the  costs  and  expenses 
of  such  prosecution  shall  be  paid  out  of  the  appropriation  for 
the  expenses  of  the  courts  of  the  United  States.  For  the  pur- 
poses of  this  act,  excepting  its  penal  provisions,  the  circuit 
courts  of  the  United  States  shall  be  deemed  to  be  always  in  ses- 
sion." 

The  section  as  amended  by  the  act  of  March  2,  1889,  is  as  fol- 
lows : 

"That  whenever  any  common  carrier,  as  defined  in  and  sub- 
ject to  the  provisions  of  this  act,  shall  violate,  or  refuse  or 
neglect  to  obey  or  perform  any  lawful  order  or  requirement  of 
the  Commission  created  by  this  act,  not  founded  upon  a  contro- 
versy requiring  a  trial  by  jury,  as  provided  by  the  seventh 
amendment  to  the  Constitution  of  the  United  States,  it  shall  be 
lawful  for  the  Commission  or  for  any  company  or  person  in- 
terested in  such  order  or  requirement,  to  apply  in  a  summary 
way,  by  petition,  to  the  circuit  court  of  the  United  States  sit- 
ting in  equity  in  the  judicial  district  in  which  the  common  car- 
rier complained  of  has  its  principal  office,  or  in  which  the  viola- 
tion or  disobedience  of  such  order  or  requirement  shall  happen, 
r.lleging  such  violation  or  disobedience,  as  the  cause  may  be; 
and  the  said  court  shall  have  power  to  hear  and  determine  the 
matter,  on  such  notice  to  the  common  carrier  complained  of  as 


§  406.]  Annotated.  599 

the  court  shall  deem  reasonable ;  and  such  notice  may  be  served 
on  such  common  carrier,  his  or  its  officers,  agents,  or  servants  in 
such  manner  as  the  court  shall  direct ;  and  said  court  shall  pro- 
ceed to  hear  and  determine  the  matter  speedily  as  a  court  of 
equity,  and  without  the  formal  pleadings  and  proceedings  to 
ordinary  suits  in  equity,  but  in  such  manner  as  to  do  justice  in 
the  premises;  and  to  this  end  such  court  shall  have  power,  if  it 
think  fit,  to  direct  and  prosecute  in  such  mode  and  by  such  per- 
sons as  it  may  appoint,  all  such  inquiries  as  the  court  may  think 
needful  to  enable  it  to  form  a  just  judgment  in  the  matter  of 
such  petition ;  and  on  such  hearing  the  findings  of  fact  in  the 
report  of  said  Commission  shall  be  prima  facie  evidence  of  the 
matters  therein  stated;  and  if  it  be  made  to  appear  to  such  court, 
on  such  hearing  or  on  report  of  any  such  person  or  persons,  that 
the  lawful  order  or  requirement  of  said  Commission  drawn  in 
question  has  been  violated  or  disobeyed,  it  shall  be  lawful  for 
tuch  court  to  issue  a  writ  of  injunction  or  other  proper  process, 
mandatory  or  otherwise,  to  restrain  such  common  carrier  from 
further  continuing  such  violation  or  disobedience  of  such  order 
or  requirement  of  said  Commission,  and  enjoining  obedience  to 
the  same ;  and  in  case  of  any  disobedience  of  any  such  writ  of 
injunction  or  other  proper  process,  mandatory  or  otherwise,  it 
shall  be  lawful  for  such  court  to  issue  writs  of  attachment,  or 
any  other  process  of  said  court  incident  or  applicable  to  writs 
of  injunction  or  other  proper  process,  mandatory  or  otherwise, 
against  such  common  carrier,  and  if  a  corporation,  against  one 
or  more  of  the  directors,  officers,  or  agents  of  the  same,  or  against 
any  owner,  lessee,  trustee,  receiver,  or  other  person  failing  to 
obey  such  writ  of  injunction,  or  other  proper  process,  manda- 
tory or  otherwise ;  and  said  court  may,  if  it  shall  think  fit,  make 
an  order  directing  such  common  carrier  or  other  person  so  dis- 
obeying such  writ  of  injunction  or  other  proper  process,  manda- 
tory or  otherwise,  to  pay  such  sum  of  money,  not  exceeding  for 
each  carrier  or  person  in  default  the  sum  of  five  hundred  dol- 
lars for  every  day,  after  a  day  to  be  named  in  the  order,  that 
such  carrier  or  other  person  shall  fail  to  obey  such  injunction  or 
other  proper  process,  mandatory  or  otherwise ;  and  such  moneys 
shall  be  payable  as  the  court  shall  direct,  either  to  the  party 
complaining  or  into  court,  to  abide  the  ultimate  decision  of  the 
court,  or  into  the  treasury;  and  payment  thereof  may,  without 
prejudice  to  any  other  mode  of  recovering  the  same,  be  enforced 


600  Acts  Regulating  Commerce,  [§  406. 

by  attachment  or  order  in  the  nature  of  a  writ  of  execution,  in 
Hke  manner  as  if  the  same  had  been  recovered  by  a  final  decree 
in  personam  in  such  court.  When  the  subject  in  dispute  shall 
be  of  the  value  of  two  thousand  dollars  or  more,  either  party  to 
such  proceeding  before  said  court  may  appeal  to  the  Supreme 
Court  of  the  United  States,  under  the  same  regulations  now  pro- 
vided by  law  in  respect  of  security  for  such  appeal ;  but  such 
appeal  shall  not  operate  to  stay  or  supersede  the  order  of  the 
court  or  the  execution  of  any  writ  or  process  thereon,  and  such 
court  may,  in  every  such  matter,  order  the  payment  of  such 
costs  and  counsel  fees  as  shall  be  deemed  reasonable.  Whenevei* 
r.ny  such  petition  shall  be  filed  or  presented  by  the  Commission, 
it  shall  be  the  duty  of  the  district  attorney,  under  the  direction 
of  the  Attorney-General  of  the  United  States,  to  prosecute  the 
same ;  and  the  costs  and  expenses  of  such  prosecution  shall  be 
paid  out  of  the  appropriation  for  the  expenses  of  the  courts  of 
the  United  States. 

"If  the  matters  involved  in  any  such  order  or  requirement  of 
said  Commission  are  founded  upon  a  controversy  requiring  a 
trial  by  jury,  as  provided  by  the  seventh  amendment  to  the 
Constitution  of  the  United  States,  and  any  such  common  carrier 
shall  violate  or  refuse  or  neglect  to  obey  or  perform  the  same, 
after  notice  given  by  said  Commission  as  provided  in  the  fifteenth 
section  of  this  act,  it  shall  be  lawful  for  any  company  or  person 
interested  in  such  order  or  requirement  to  apply  in  a  summary 
way  by  petition  to  the  circuit  court  of  the  United  States  sitting 
as  a  court  of  law  in  the  judicial  district  in  w^iich  the  carrier 
complained  or  has  its  principal  ofiice,  or  in  which  the  violation 
or  disobedience  of  such  order  or  requirement  shall  happen,  al- 
leging such  violation  or  disobedience  as  the  case  may  be ;  and 
said  court  shall  by  its  order  then  fix  a  time  and  place  for  the 
trial  of  said  cause,  which  shall  not  be  less  than  twenty  nor  more 
than  forty  days  from  the  time  said  order  is  made,  and  it  shall 
be  the  duty  of  the  marshal  of  the  district  in  which  said  pro- 
ceeding is  pending  to  forthwith  serve  a  copy  of  said  petition, 
and  of  said  order,  upon  each  of  the  defendants,  and  it  shall  be 
the  duty  of  the  defendants  to  file  their  answers  to  said  petition 
within  ten  days  after  the  service  of  the  same  upon  them  as 
aforesaid.  At  the  trial  the  findings  of  fact  of  said  Commission 
as  set  forth  in  its  reports  shall  be  prima  facie  evidence  of  the 
matters  therein  stated,  and  if  either  party  shall  demand  a  jury 


( 
I 


§  406.]  Annotated.  •  601 

or  shall  omit  to  waive  a  jury  the  court  shall,  by  its  order,  direct 
the  marshal  forthwith  to  summons  a  jury  to  try  the  cause;  but 
if  all  the  parties  shall  waive  a  jury  in  writing,  then  the  court 
shall  try  the  issues  in  said  cause  and  render  its  judgment  thereon. 
If  the  subject  in  dispute  shall  be  of  the  value  of  two  thousand 
dollars  or  more  either  party  may  appeal  to  the  Supreme  Court 
of  the  United  States  under  the  same  regulations  now  pro- 
vided by  law  in  respect  to  security  for  such  appeal ;  but  such 
appeal  must  be  taken  within  twenty  days  from  the  day  of  the 
rendition  of  the  judgment  of  said  circuit  court.  If  the  judgment 
of  the  circuit  court  shall  be  in  favor  of  the  party  complaining, 
he  or  they  shall  be  entitled  to  recover  a  reasonable  counsel  or 
attorney's  fee,  to  be  fixed  by  the  court,  which  shall  be  collected 
as  part  of  the  costs  in  the  case.  For  the  purposes  of  this  act, 
excepting  its  penal  provisions,  the  circuit  courts  of  the  United 
States  shall  be  deemed  to  be  always  in  session." 

In  Council  r.  Railroad  Co.,  1  I.  C.  C.  339,  1  I.  C.  R.  683,  the 
Commission  declined  to  go  into  the  question  of  a  claim  for  dam- 
ages for  trespass,  stating  that  a  jury  trial  was  necessary  in  such 
cases.  See  a  similar  holding.  Heck  v.  East  Tenn.,  Va.  &  Ga. 
Ry.  Co.,  1  I.  C.  C.  495,  1  I.  C.  R.  775 ;  Riddle  v.  New  York,  L.  E. 
&  W.  R.  Co.,  1  I.  C.  C.  594,  1  I.  C.  R.  787.  In  the  case  of 
Rawson  v.  Newport  N.  &  M.  V.  R.  Co.,  3  1.  C.  C.  266,  2  I. 
C.  R.  626,  the  Commission  said  that  the  amendment  of  March 
2,  1889,  having  provided  for  a  trial  by  jury  in  suits  on  the  Com- 
mission's orders  of  reparation,  such  orders  could  under  that 
amendment  be  issued.  For  a  time  even  after  the  amendment 
the  Commission  refused  to  issue  money  orders  for  reparation, 
leaving  the  matter  to  the  courts,  but  a  circuit  court  having  de- 
cided that  the  failure  of  the  Commission  to  act,  barred  the  com- 
plainant ;  the  Commission  decided  that  it  was  its  duty,  where 
the  facts  and  law  authorized  it,  to  make  awards  of  reparation. 
MacLoon  v.  Chicago  &  N.  W.  R.  Co..  5  I.  C.  C.  84.  3  I.  C.  R. 
711,  715.  716.  See  also  Cattle  Raisers'  Asso.  v.  Chicago  B.  & 
Q.  R.  Co.,  10  I.  C.  C.  83,  89,  95.  Section  quoted.  Blume  & 
Co.  V.  Wells  Fargo  &  Co.,  15  I.  C.  C.  53.  55.  Clearly  the 
commission  has  authority  to  make  an  award  of  damages.  Washer 
Grain  Co.  v.  Mo.  Pac.  Ry.  Co.,  15  I.  C.  C.  147,  153.  Arkansas 
Fuel  Co.  V.  Chicago,  M.  &  St.  P.  Ry.  Co..  16  I.  C.  C.  95,  98. 
The  difference  between  the  old  law  and  the  amended  act  of 
June  29,  1906,  should  be  kept  in  mind  when  considering  the  de- 


602  Acts  Regulating  Commerce,  [§  406. 

cisions  relating  to  the  section  prior  to  that  amendment.  A  suit 
on  an  order  of  the  Commission  is  an  independent  suit,  in  which 
the  court  hears  the  case  de  novo,  though  the  Commission's  re- 
port is  prima  facie  evidence  of  the  matters  of  fact  therein  stated. 
Kentucky  &  I.  Bridge  Co.  v.  L.  &  N.  R.  Co.,  37  Fed.  567,  614. 
This  is  true  whether  the  Commission  itself  or  an  individual  seeks 
to  enforce  the  order  of  the  Commission.  Int.  Com.  Com.  v.  Le- 
high V.  R.  Co.,  49  Fed.  177.  Other  evidence  may  overcome  the 
prima  facie  effect  of  the  Commission's  report.  Int.  Com.  Com.  v. 
A.  T.  &  S.  F.  R.  Co.,  50  Fed.  295,  304;  Int.  Com.  Com.  v.  Cin- 
cinnati, N.  O.  &  T.  P.  Ry.  Co.,  56  Fed.  925,  934,  935.  If  order 
not  obeyed,  duty  of  Commission  to  apply  to  a  court  to  enforce. 
Int.  Com.  Com.  v.  Detroit,  G.  H.  &  M.  Ry.  Co.,  57  Fed.  1005,  4 
I.  C.  R.  722.  Courts  can  only  enforce  or  refuse  to  enforce  orders 
as  made.  Shinkle,  etc.,  v.  L.  &  N.  R.  Co.,  62  Fed.  690;  Detroit, 
G.  H.  &  M.  R.  Co.  V.  Int.  Com  Com.,  74  Fed.  803,  841,  21  C.  C. 
A.  103.  Order  not  enforced  because  Commission  failed  to  recog- 
nize "the  element  of  the  value  of  the  service."  Int.  Com.  Com.  v. 
Delaware,  L.  &  W.  R.  Co.,  64  Fed.  723,  724.  Section  cited. 
Int.  Com.  Com.  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.,  64  Fed. 
981,  984,  13  U.  S.  App.  700.  The  Commission's  report  is  anal- 
agous  to  that  of  a  referee  or  special  master  in  chancery.  Int. 
Com.  Com.  V.  L.  &  N.  R.  Co.,  73  Fed.  409,  414.  The  circuit 
court  sitting  as  a  court  of  equity  has  no  jurisdiction  of  that 
part  of  the  Commission's  order  relating  to  reparation.  Int.  Com. 
Com.  V.  Western  N.  Y.  &  P.  R.  Co.,  82  Fed.  192.  An  order  to 
be  enforced  must  be  definite  and  within  the  legal  power  of  the 
Commission.  Farmers'  L.  &  T.  Co.  v.  N.  Pac.  Ry.  Co.,  83  Fed. 
249.  If,  after  a  hearing,  the  court  finds  the  facts  different  from 
those  found  by  the  Commission,  the  court  will  act  on  the  facts 
found  by  it.  Int.  Com.  Com.  v.  East  Tenn.,  Va.  &  Ga.  Ry.  Co., 
85  Fed.  107.  Act  remedial  and  a  hearing  should  be  had,  al- 
though the  benefit  to  be  derived  from  the  order  appears  unappre- 
ciable.  Int.  Com.  Com.  v.  Chicago,  B.  &  Q.  R.  Co.,  94  Fed.  272. 
A  decree  enforcing  order  of  the  Commission  may  be  suspended 
pending  an  appeal  to  the  Supreme  Court.  Int.  Com.  Com.  v.  L. 
&  N.  R.  Co.,  101  Fed.  146.  Order  not  set  aside  unless  error 
clearly  appears.  Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  102  Fed.  709. 
When  the  Commission  has  erred  in  the  principles  of  law  applied, 
the  suit  to  enforce  should  be  dismissed  without  prejudice  to  the 
right  to  again  apply  to  that  body.     Int.  Com.  Com.  v.  So.  Ry. 


§  406.]  Annotated.  o03 

Co.,  105  Fed.  703,  710;  L.  &  N.  R.  Co.  v.  Behlmer,  175  U.  S. 
648,  44  L.  Ed.  309,  20  Sup.  Ct.  209.  A  bill  will  not  lie  to  pre- 
vent discrimination  under  section  three  prior  to  action  by  the 
Commission.  Central  Stock  Yards  Co.  v.  L.  &  N.  R.  Co.,  112 
Fed.  823.  Affirmed  on  another  ground.  118  Fed.  113,  55  C. 
C.  A.  63.  Affirmed  by  the  Supreme  Court,  with  the  statement, 
"For  the  purposes  of  decision,  we  assume  *  *  *  that  such 
rights  as  the  plaintiff  has  may  be  enforced  by  bill  in  equity," 
(citing  Interstate  Stock  Yards  Co.  v.  Indianapolis  U. 
R.  Co.,  99  Fed.  472.)  192  U.  S.  568,  570,  48  L.  Ed.  565,  569, 
24  Sup.  Ct.  339.  Burden  on  the  carrier  to  show  order  erroneous. 
Int.  Com.  Com.  v.  L.  &  N.  R.  Co.,  118  Fed.  613,  622;  Int.  Com. 
Com.  V.  So.  Pac.  Co.,  123  Fed.  597,  602,  603,  604;  Int.  Com! 
Com.  V.  Cincinnati,  H.  &  D.  Ry.  Co.,  146  Fed.  559.  Affirmed. 
Cincinnati  H.  &  D.  Ry.  Co.  v.  Int.  Com.  Com.,  206  U.  S.  142, 

51  L.  Ed.  995,  27  Sup.  Ct.  648.  The  court  may  adopt  different 
grounds  to  arrive  at  the  same  conclusion  as  the  Commission. 
Int.  Com.  Com.  v.  So.  Pac.  Co.,  132  Fed.  829,  137  Fed.  606. 
Decree  reversed.  So.  Pac.  Co.  v.  Int.  Com.  Com.,  200  U.  S. 
536,  50  L.  Ed.  585,  26  Sup.  Ct.  330.  Courts  can  not  separate  the 
legal  from  the  illegal  parts  of  an  order  of  the  Commission,  and 
if  any  part  is  illegal,  must  refuse  to  enforce.  Int.  Com.  Com.  v. 
Lake  Shore  &  M.  S.  Ry.  Co.,  134  Fed.  942,  947.  The  findings 
of  fact  of  the  Commission  should  be  separated  from  its  argu- 
ments, opinions  and  conclusions.  Western  N.  Y.  &  P.  R.  Co.  v. 
Penn.  Refining  Co.,  137  Fed.  343,  70  C.  C.  A.  23.  Affirmed. 
Penn.  Refining  Co.  v.  Western  N.  Y.  &  P.  R.  Co.,  208  U.  S.  208, 

52  L.  Ed.  456,  28  Sup.  Ct.  268.  "Prima  facie  evidence  of  a 
fact  is  such  as,  in  judgment  of  law,  is  sufficient  to  establish  the 
fact ;  and,  if  not  rebutted,  remains  sufficient  for  the  purpose." 
Tift  V.  So.  Ry.  Co.,  138  Fed.  753,  759.  Affirmed.  So.  Ry.  Co. 
V.  Tift,  148  Fed.  1021,  206  U.  S.  428,  51  L.  Ed.  1124,  27  Sup. 
Ct.  709.  Section  cited  to  show  that  Commission  may  sue  in  its 
own  name  to  enforce  its  orders.  Tex.  &  Pac.  R.  Co.  v.  Int. 
Com.  Com.,  162  U.  S.  197,  203,  40  L.  Ed.  940,  942,  16  Sup.  Ct. 
666.  This  section  applies  to  complaints  brought  under  the 
fourth  section,  notwithstanding  the  proviso  of  the  last  named 
section.  Int.  Com.  Com.  v.  Alabama  M.  R.  Co.,  168  U.  S.  144, 
169,  170,  40  L.  Ed.  414,  424,  18  Sup.  Ct.  45.  Under  section 
eleven  of  the  act  of  March  3,  1891  (26  Stat.  L.  829,  chap.  517), 
a  supersedeas  may  be  granted  by  the  circuit  court  of  appeals. 


604  Acts  Regulating  Commerce,  [§  407. 

when  an  appeal  is  granted  on  a  suit  brought  under  section  six- 
teen of  the  act  to  regulate  commerce.  L.  &  N.  R.  Co.  v.  Behl- 
mer,  169  U.  S.  644,  42  L.  Ed.  889,  18  Sup.  Ct.  502.  Case  dis- 
missed without  prejudice  to  right  of  Commission  further  to  in- 
vestigate conformably  to  the  law  announced  by  the  court.  L.  & 
N.  R.  Co.  V.  Behlmer,  175  U.  S.  648,  676,  44  L.  Ed.  309,  320,  20 
Sup.  Ct.  209 ;  East  Tenn.,  Va.  &  Ga.  Ry.  Co.  v.  Int.  Com.  Com., 
181  U.  S.  1,  45  L.  Ed.  719,  21  Sup.  Ct.  516;  Int.  Com.  Com.  v. 
Clyde  S.  S.  Co.,  181  U.  S.  29,  45  L.  Ed.  729,  21  Sup.  Ct.  512; 
Int.  Com.  Com.  v.  Chicago,  B.  &  O.  R.  Co.,  186  U.  S.  320,  46  L. 
Ed.  1182,  22  Sup.  Ct.  824.  The  statute  gives  prima  facie  effect 
to  the  findings  of  the  Commission,  and  when  these'  findings  are 
concurred  in  by  the  circuit  court,  they  should  not  be  interfered 
with  unless  the  record  discloses  clear  and  unmistakable  error. 
Cincinnati,  H.  &  D.  R.  Co.  v.  Int.  Com.  Com..  206  U.  S.  142, 
154,  51  L.'  Ed.  995,  1000,  27  Sup.  Ct.  648;  111.  Cent.  R.  Co.  z: 
Int.  Com.  Com.,  206  U.  S.  441,  466,  51  L.  Ed.  1128,  1138,  27  Sup. 
Ct.  700.  The  parties  at  interest  may  proceed  on  the  order  of  the 
Commissio.n  in  the  circuit  court.  So.  Ry.  Co.  v.  Tift,  206  U.  S. 
428,  437,  51  L.  Ed.  1124,  1127,  27  Sup.' Ct.  709.  "The  findings 
of  the  Commission  are  made  by  law  prima  facie  true.  This  court 
has  ascribed  to  them  the  strength  due  to  the  judgment  of  a 
tribunal  appointed  by  law  and  informed  by  experience."  111. 
Cent.  R.  Co.  r.  Int.  Com.  Com..  206  U.  S.  441.  454.  51  L.  Ed. 
1128,  1133.  1134.  27  Sup.  Ct.  700. 

Notes  of  Decisions  Rendered  Since  1909. 

See  notes  Section  13  of  act.  Sec.  393,  ante.  Statute  of  Lim- 
itation. Shoecraft  &  Son  Co.  v.  I.  C.  R.  Co.,  19  I.  C.  C.  492: 
Blinn  Lumber  Co.  z'.  S.  P.  Co.,  18  I.  C.  C.  430.  After  determin- 
ing a  rate  unreasonable,  improper  not  to  award  reparation. 
Thompson  Lumber  Co.  v.  Int.  Com.  Com..  193  Fed.  682,  Op.  Com. 
Ct.  No.  19,  p.  319.  See  Thompson  Lumber  Co.  f.  111.  C.  R.  Co.. 
13  I.  C.  C.  657;  Russe  &  Burgess  r.  Int.  Com.  Com..  193  Fed. 
678.  General  statement  of  findings  of  the  Commission  sufficient. 
Lehigh  Willey  R.  Co..  v.  American  Hay  Co.,  219  Fed.  539.  Ul- 
timate facts  should  be  stated,  ^vleeker  v.  Lehigh  A'.  R.  Co.,  236 
U.  S.  412,  59  L.  Ed.  — .  35  Sup.  Ct.  328. 

§  407.  Carrier  Failing  to  Comply  With  Order  for  Repa- 
ration,  Suit  May  Be  Broiig-ht  Thereon  in  United  States 


§  407.]  Annotated.  605 

Circuit  Courts,  the  Order  Being  Prima  Facie  Evidence  of 
Right  to  Recover. — If  a  carrier  does  not  comply  with  an  order 
for  the  payment  of  money  within  the  time  Hmit  in  such  order, 
the  complainant,  or  any  person  for  whose  benefit  such  order 
was  made,  may  file  in  the  circuit  court  of  the  United  States  for 
the  district  in  which  he  resides  or  in  which  is  located  the  princi- 
pal operating  office  of  the  carrier,  or  through  which  the  road 
of  the  carrier  runs,  or  in  any  state  court  of  general  jurisdiction 
having  jurisdiction  of  the  parties,  a  petition  setting  forth  briefly 
the  causes  for  which  he  claims  damages,  and  the  order  of  the 
Commission  ,in  the  premises.  Such  suit  in  the  circuit  court  of 
the  United  States  shall  proceed  in  all  respects  like  other  civil 
suits  for  damages,  except  that  on  the  trial  of  such  suit  the  find- 
ings and  order  of  the  Commission  shall  be  prima  facie  evidence 
of  the  facts  therein  stated,  and  except  that  the  petitioner  shall 
not  be  liable  for  costs  in  the  circuit  court  nor  for  costs  at  any 
subsequent  stage  of  the  proceedings  unless  they  accrue  upon  his 
appeal.  If  the  petitioner  shall  finally  prevail  he  shall  be  al- 
lowed a  reasonable  attorney's  fee,  to  be  taxed  and  collected  -as  a 
part  of  the  costs  of  the  suit. 

First  part  of  second  paragraph  of  Sec.  16.  For  old  Sec. 
16  see  next  preceding  section.  The  words  italicized  were  added 
by  the  amendment  of  June  18,  1910. 

Basis  of  reparation  fixed,  but  the  courts  left  to  determine  the 
amount.  Independent  Refiners'  Asso.  z'.  Western  New  York  & 
P.  R.  Co.,  6  I.  C.  C.  378,  449,  454.  Reparation  disallowed. 
Western  Xew  York  &  P.  R.  Co.  r.  Penn  Refining  Co.,  137  Fed. 
343,  70  C.  C.  A.  23.  Affirmed.  Penn  Refining  Co.  r.  Western 
N.  Y.  &  P.  R.  Co.,  208  U.  S.  208,  52  L.  Ed.  456,  28  Sup.  Ct.  268. 
No  suit  prior  to  an  award  by  the  Commission.  Howard  Supply 
Co.  V.  Chesapeake  &  O.  Ryl  Co.,  162  Fed.  188,  191.  Texas  & 
Pac.  Ry.  Co.  v.  Abilene  Cotton  Oil  Co.,  204  U.  S.  426,  51  L.  Ed. 
553,  27  Sup.  Ct.  350. 

Notes  of  Decisions  Rendered  Since  1909. 

Applies  only  when  previous  award  made  by  the  Commission, 
R.  J.  Darnell,  Inc.  z:  111.  C.  R.  Co..  190  Fed.  656;  Franklin  v. 
P.  &  R.  Ry.  Co.,  203  Fed.  134.  Order  not  prima  facie  evidence 
of  liability,  but  only  of  the  facts  stated.  Darnell-Taenzer  Lum- 
ber Co.  v.  So.  Pac.  Co.,  190  Fed.  659 ;  reversing  same  styled  case, 
221  Fed.  890, C.  C.  A. .     See  also  Russe  &  Burgess  v. 


606  Acts  Regulating  Commerce,  [§  408. 

Int.  Com.  Com.,  193  Fed.  678;  Thompson  Lumber  Co.  v.  111.  C. 
R.  Co.,  193  Fed.  682,  Op.  Com.  Ct.  No.  19,  p.  319.  No  attorneys' 
fees  for  loss  of  property.  AIo.  Pac.  Ry.  Co.  v.  Harper  Bros.,  201 
Fed.  671,  121  C.  C.  A.  570.  Not  .just  a  suit  on  the  award  but 
a  plenary  suit.  Lehigh  \'.  R.  Co.  v.  Clark,  207  Fed.  717,  125  C. 
C.  A.  235.  See  opinion  of  the  Commission,  Naylor  &  Co.  v.  L. 
A'.  R.  Co.,  15  I.  C.  C.  9,  18  I.  C.  C.  624.  Not  necessary  to  fix 
a  new  rate  preliminary  to  an  award  of  reparation.  Baer  Bros. 
.Mercantile  Co.  v.  D.  &  R.  G.  R.  R.  Co.,  233  U.  S.  479,  58  L. 
Ed.  1035,  34  Sup.  Ct.  641.  Reversing  Denver  &  R.  G.  R.  Co.  v. 
Baer  Bros.  Mercantile  Co.,  187  Fed.  485,  109  C.  C.  A.  ZZ7.  See 
Baer  Bros.  Mercantile  Co.  v.  M.  P.  Ry.  Co.,  17  I.  C.  C.  225; 
Denver  &  R.  G.  Co.  v.  Baer  Bros.  Merct.  Co.,  209  Fed.  577,  126 
C.  C.  A.  399.  Same  styled  case,  200  Fed.  614.  Order  fixing  un- 
reasonableness of  rates  in  favor  of  one  party  may  be  sued  on  by 
others.  National  Pole  Co.  v.  Chicago  &  Mo.  Ry.  Co.,  211  Fed. 
65.  Suit  may  be  brought  where  beneficiary  resides.  St.  L.  &  S. 
W.  Ry.  Co.  V.  Samuels  Co.,  211  Fed.  588.  The  evidential  value 
of  an  order  of  the  Commission  is  for  the  determination  of  the 
court  and  jury.  Lehigh  Valley  R.  Co.  v.  Meeker,  211  Fed.  785. 
Interest  and  attorneys'  fees  allowed,  209  Fed.  i77 ,  supra.  No 
attorneys'  fees  can  be  allowed  where  recovery  is  under  a  state 
law  for  failure  to  furnish  cars.  A.  T.  &  S.  F.  Ry.  Co.  v.  A'osberg, 
238  U.  S.  56,  59  L.  Ed.  — ,  35  Sup.  Ct.  675.  See  annotations 
Sees.  382  and  383.  supra. 

§  408.  Limitation  on  Action  for  Damages. — All  complaints 
for  the  recovery  of  damages  shall  be  filed  with  the  Commission 
within  two  years  from  the  time  the  cause  of  action  accrues,  and 
not  after,  and  a  petition  for  the  enforcement  of  an  order  for 
the  payment  of  money  shall  be  filed  in  the  circuit  court  or  state 
court  within  one  year  from  the  date  of  the  order,  and  not  after. 

Last  part  of  second  paragraph  of  Sec.  16,  amended  by  the  act 
of  June  18,  1910  by  adding  the  words  "or  state  court." 

Prior  to  this  amendment  no  limitation  was  prescribed  by  the 
act,  and  the  Commission  held  that  the  law  of  the  state  in  which 
was  located  the  circuit  court  in  which  suit  was  brought  on  the 
order  of  reparation  would  control  as  to  limitation.  Cattle  Rais- 
ers' Asso.  V.  C,  B.  &  O.  R.  Co.,  10  I.  C.  C.  83,  100,  101,  102, 
103,  104.  Question  as  to  limitation  raised,  but  not  decided.  Osh- 
kosh  Logging  Tool  Co.  v.  Chicago  &  N.  W.  Ry.  Co.,  14  I.  C.  C. 


§  408.]  Annotated.  607 

109,  113.  The  limitation  period  of  one  year  begins  to  run  August 
28,  1906.  and  claims  arising  prior  to  that  date,  which  is  the  ef- 
fective date  of  the  amended  act,  though  accrued  more  than  two 
years  prior  thereto,  may  be  presented  prior  to  midnight  of  Au- 
gust 28,  1907.  Nicola,  Stone  &  Myers  Co.  v.  L.  &  N.  R.  Co.,  14 
I.  C.  C.  199,  206.  A  written  presentation  of  a  claim  without 
formal  complaint  stops  limitation.  Venus  v.  St., Louis,  I.  M.  &  S. 
Ry.  Co.,  15  I.  C.  C.  136.  The  cause  of  action  accrues  when  the 
carrier  violates  the  act.  Re  When  a  Cause  of  Action  Accrues, 
15  I.  C.  C.  201.  Or  when  freight  charges  are  paid.  Kile  &  Mor- 
gan Co.  V.  Deepwater  Ry.  Co.,  15  I.  C.  C.  235.  This  statute  does 
not  apply  to  suits  brought  primarily  in  a  federal  court.  Lyne  v. 
Delaware,  L.  &  W.  R.  Co.,  170  Fed.  847. 

Notes  of  Decisions  Rendered  Since  1909. 

Ruling  on  Blinn  Lumber  Co.  v.  S.  P.  Co.,  18  L  C.  C.  430; 
Standard  Oil  Co.  -.■.  C.  T.  &  R.  R.  Co.,  21  I.  C.  C.  460,  461 ; 
Shoecraft  &  Son  Co.  r.  I.  C.  R.  Co.,  19  I.  C.  C.  492.  Informal 
complaint  stops  the  running  of  the  statute.  Memphis  Freight 
Bureau  v.  St.  L.  S.  W.  Ry.  Co.,  18  L  C.  C.  67;  Riverside  Mills 
V.  Ga.  R.  R.  Co.,  20  I.  C.  C.  423,  424.  Liability  of  carrier  sev- 
eral. Sondheimer  v.  I.  C.  R.  R.  Co.,  20  I.  C.  C.  606,  610,  citing 
Independent  Refiners'  Ass'n  v.  W.  N.  Y.  &  P.  R.  R.  Co.,  6  I.  C. 
C.  378.  What  is  a  sufficient  statement  of  the  claim  to  stop  the 
running  of  the  statute.  Fels  &  Co.  v.  P.  R.  R.  Co.,  23  I.  C.  C. 
483,  488.  Complaint  dismissed,  action  barred.  ]\Iemphis  -Freight 
Bureau  v.  St.  L.  I.  M.  &  S.  Ry.  Co.,  24  I.  C.  C.  547;  Arkansas 
Fertilizer  Co.  v.  St.  L.  I.  M.  &  S.  Ry.  Co.,  25  I.  C.  C.  266.  The 
question  goes  to  the  jurisdiction  which  is  lost  after  the  statute 
has  run.  Michigan  Hardwood  Mfgrs.  Ass'n  v.  Freight  Bureau, 
27  I.  C.  C.  32.  Filing  complaint  by  an  association  does  not  stop 
the  running  of  the  statute  save  in  favor  of  those  named  in  the 
complaint.  Commercial  Club  of  Omaha  v.  A.  &  S.  R.  Ry.  Co., 
27  1.  C.  C.  302,  307.  Receipt  of  a  claim  is  filing.  Marion  Coal 
Co.  V.  D.  L.  &  W.  R.  R.  Co.,  27  I.  C.  C.  441,  442.  Better  prac- 
tice to  file  claim  for  reparation  in  the  original  complaint.  Al- 
leged Unreasonable  Rates  on  Meat,  28  I.  C.  C.  332,  335.  Intent 
of  the  statute  discussed.  Lehigh  V.  R.  Co.  v.  Meeker,  211  Fed. 
785,  802,  128  C.  C.  A.  311  ;  Meeker  v.  Lehigh  V.  R.  Co.,  236  U.  S. 
412.  59  L.  Ed.  — ,  35  Sup.  Ct.  328;  Penn.  R.  Co.  v.  Jacoby,  239 


608  Acts  Regulating  Commerce,  [§  409. 

U.  S.  — ,  60  L.  Ed.  — ,  36  Sup.  Ct.  — ,  affirming  by  divided  courts, 
Jacoby  v.  Penn.  R.  Co.,  19  I.  C.  C.  392. 

§  40*>.  All  Parties  Jointly  Awarded  Damages  May  Sue  as 
Plaintiff  against  All  Carriers   Parties  to  the  Award. — In 

such  suits  all  parties  in  whose  favor  the  Commission  may  have 
made  an  award  for  damages  by  a  single  order  may  be  joined  as 
plaintiffs,  and  all  of  the  carriers  parties  to  such  order  awarding 
such  damages  may  be  joined  as  defendants,  and  such  suit  may 
be  maintained  by  such  joint  plaintiffs  and  against  such  joint  de- 
fendants in  any  district  where  any  one  of  such  joint  plaintiffs 
could  maintain  such  suit  against  any  one  of  such  joint  defend- 
ants ;  and  service  of  process  against  any  one  of  such  defendants 
as  may  not  be  found  in  the  district  where  the  suit  is  brought  may 
be  made  in  any  district  where  such  defendant  carrier  has  its 
principal  operating  office.  In  case  of  such  joint  suit  the  recovery, 
if  any,  maybe  by  judgment  in  favor  of  any  one  of  such  plaintiffs, 
against  the  defendant  found  to  be  liable  to  such  plaintiff'. 

Third  paragraph  of  section  sixteen. 

§  410.  Service  of  Orders  of  Commission. — Every  order  of 
the  Commission  shall  be  forthwith  served  upon  the  designated 
agent  of  the  carrier  in  the  city  of  Washington  or  in  such  other 
manner  as  may  be  provided  by  law. 

Fourth  paragraph  of  Sec.  16  as  amended  by  Act  June  18,  1910. 
The  former  section  read  : 

Every  order  of  the  Commission  shall  be  forthwith  served  by 
mailing  to  any  one  of  the  principal  officers  or  agents  of  the  car- 
rier at  his  usual  place  of  business  a  copy  thereof;  and  the  regis- 
try mail  receipt  shall  be  priina  facie  evidence  of  the  receipt  of 
such  order  by  the  carrier  in  due  course  of  mail. 

§  411.  Commission  May  Suspend  or  Modify  Its  Orders. 
— The  Commission  shall  be  authorized  to  suspend  or  modify  its 
orders  upon  such  notice  and  in  such  manner  as  it  shall  deem 
proper. 

Fifth  paragraph  of  section  sixteen. 

Power  exercised.  Traffic  Bureau  ^lerchants  Ex.  of  St.  Louis 
7>.  Chicago,  B.  &  O.  R.  Co..  14  I.  C.  C.  551. 

§  412.  Punishment  for  Knowingly  Disobeying  an  Order 
Issued  under  Section  Fifteen. — It  shall  be  the  duty  of  every 
common  carrier,  its  agents  and  employees,  to  observe  and  comply 
with  such  orders  so  long  as  the  same  shall  remain  in  eff'ect. 


§  413.]  Annotated.  609 

Any  carrier,  any  officer,  representative,  or  agent  of  a  carrier, 
or  any  receiver,  trustee,  lessee,  or  agent  of  either  of  them,  who 
knowingly  fails  or  neglects  to  obey  any  order  made  under  the 
provisions  of  section  fifteen  of  this  act  shall  forfeit  to  the  United 
States  the  sum  of  five  thousand  dollars  for  each  offense.  Every 
distinct  violation  shall  be  a  separate  offense,  and  in  case  of  a 
continuing  violation  each  day  shall  be  deemed  a  separate  offense. 

The  forfeiture  provided  for  in  this  act  shall  be  payable  into 
the  treasury  of  the  United  States,  and  shall  be  recoverable  in  a 
civil  suit  in  the  name  of  the  United  States,  brought  in  the  dis- 
trict where  the  carrier  has  its  principal  operating  office,  or  in 
any  district  through  which  the  road  of  the  carrier  runs. 

It  shall  be  the  duty  of  the  various  district  attorneys,  under  the 
direction  of  the  Attorney  General  of  the  United  States,  to  pros- 
ecute for  the  recovery  of  forfeitures.  The  costs  and  expenses  of 
such  prosecution  shall  be  paid  out  of  the  appropriation  for  the 
expenses  of  the  courts  of  the  United  States. 

Paragraphs  six,  seven,  eight  and  nine  of  section  sixteen. 

§  413.  District  Attorney  and  Attorney- General  to  Prose- 
cute— Special  Attorneys  May  Be  Employed. — The  Commis- 
sion may  employ  such  attorneys  as  it  finds  necessary  for  the 
proper  legal  aid  and  service  of  the  Commission  or  its  members 
ir.  the  conduct  of  their  work  or  for  proper  representation  of 
the  public  interests  in  investigations  made  by  it  or  causes  or 
proceedings  pending  before  it,  whether  at  the  Commission's  own 
instance  or  upon  complaint,  or  to  appear  for  and  represent  the 
Commission  in  any  case  pending  in  the  Commerce  Court ;  and 
the  expenses  of  such  employment  shall  be  paid  out  of  the  ap- 
propriation for  the  Commission. 

Paragraph  ten  of  Sec.  16  as  amended  by  the  act  of  June  18, 
1910.     The  former  Section  read: 

It  shall  be  the  duty  of  the  various  district  attorneys,  under 
the  direction  of  the  Attorney-General  of  the  United  States,  to 
prosecute  for  the  recovery  of  forfeitures.  The  costs  and  ex- 
penses of  such  prosecution  shall  be  i)aid  out  of  the  appropria- 
tion for  the  expenses  of  the  courts  of  the  United  States.  The 
C6mmission  may,  with  the  consent  of  the  Attorney-General,  em- 
ploy special  counsel  in  any  proceeding  under  this  act,  paying  the 
expenses  of  such  employment  out  of  its  own  appropriation. 

Paragraph  nine  of  original  section  sixteen. 

—20 


610  Acts   Regui^ating   Commerce,  [§  414. 

§  414.  Courts  May  Enforce  Obedience  to  Commission's 
Orders,  Mandatory  or  Otherwise. — If  any  carrier  fails  or 
neglects  to  obey  any  order  of  the  Commission  other  than  for  the 
payment  of  money,  while  the  same  is  in  effect,  the  Interstate 
Commerce  Commission  or  any  party  injured  thereby,  or  the 
United  States,  by  its  Attorney  General,  may  apply  to  the  Com- 
merce court  for  the  enforcement  of  such  order.  If,  after  hear- 
ing, that  court  determines  that  the  order  was  regularly  made 
and  duly  served,  and  that  the  carrier  is  in  disobedience  of  the 
same,  the  court  shall  enforce  obedience  to  such  order  by  a  writ 
of  injunction  or  other  proper  process,  mandatory  or  otherwise, 
to  restrain  such  carrier,  its  officers,  agents,  or  representatives, 
from  further  disobedience  of  such  order,  or  to  enjoin  upon  it 
or  them  obedience  to  the  same. 

Paragraph  eleven  of  Sec.  16  being  amendment  of  June  18,  1910. 
The  commerce  court  having  been  abolished,  application  must  now 
be  made  to  the  district  court.  Sec.  461  post.  The  Section  prior 
to  the  amendment  read  : 

If  any  carrier  fails  or  neglects  to  obey  any  order  of  the  Com- 
mission, other  than  for  the  payment  of  money,  while  the  same 
is  in  effect,  any  pary  injured  thereby,  or  the  Commission  in  its 
own  name,  may  apply  to  the  circuit  court  in  the  district  where 
such  carrier  has  its  principal  operating  office,  or  in  which  the 
violation  or  disobedience  of  such  order  shall  happen,  for  an  en- 
forcement of  such  order.  Such  application  shall  be  by  petition, 
which  shall  state  the  substance  of  the  order  and  the  respect  in 
which  the  carrier  has  failed  of  obedience,  and  shall  be  served 
upon  the  carrier  in  such  manner  as  the  court  may  direct,  and 
the  court  shall  prosecute  such  inquiries  and  make  such  investi- 
gations, through  such  means  as  it  shall  deem  needful  in  the  as- 
certainment of  the  facts  at  issue  or  which  may  arise  upon  the 
hearing  of  such  petition.  If,  upon  such  hearing  as  the  court 
may  determine  to  be  necessary,  it  appears  that  the  order  was 
regularly  made  and  duly  served,  and  that  the  carrier  is  in  dis- 
obedience of  the  same,  the  court  shall  enforce  obedience  to  such 
order  by  a  writ  of  injunction,  or  other  proper  process,  mandatory 
or  otherwise  to  restrain  such  carrier,  its  officers,  agents,  or  rep- 
resentatives, from  further  disobedience  of  such  order,  or  to  en- 
join upon  it,  or  them,  obedience  to  the  same  ;  and  in  the  enforce- 
ment of  such  process  the  court  shall  have  those  powers  ordinarily 


§  415.]  Annotated.  611 

exercised  by  it  in  compelling  obedience  to  its  writs  of  injunction 
and  mandamus. 

Tenth  paragraph  of  original  section  sixteen. 

§  415.  Schedules,  Contracts,  etc.,  Must  Be  Filed  with 
the  Commission,  and,  When  Filed,  Original  or  Certified 
Copy  Prima  Facie  Evidence. — The  copies  of  schedules  and 
classifications  and  tariffs  of  rates,  fares,  and  charges,  and  of  all 
contracts,  agreements,  and  arrangements  between  common  car- 
riers filed  with  the  Commission  as  herein  provided,  and  the  statis- 
tics, tables,  and  figures  contained  in  the  annual  or  other  reports 
of  carriers  made  to  the  Commission  as  required  under  the  pro- 
visions of  this  act  shall  be  preserved  as  public  records  in  the 
custody  of  the  secretary  of  the  Commission,  and  shall  be  re- 
ceived as  prima  facie  evidence  of  what  they  purport  to  be  for 
the  purpose  of  investigations  by  the  Commission  and  in  all  judi- 
cial proceedings  ;  and  copies  of  and  extracts  from  any  of  said 
schedules,  classifications,  tariff's,  contracts,  agreements,  arrange- 
ments, or  reports,  made  public  records  as  aforesaid,  certified  by 
the  secretary,  under  the  Commission's  seal,  shall  be  received  in 
evidence  with  like  effect  as  the  originals. 

Last  paragraph  of  Sec.  16  as  anjended  by  the  act  of  June  18, 
1910,  the  words  italicized  being  added  by  the  amendment. 

§  416.  Rehearings  May  be  Granted  by  Commission. — 
That  after  a  decision,  order  or  requirement  has  been  made  by  the 
Commission  in  any  proceeding  any  party  thereto  may  at  any 
time  make  application  for  rehearing  of  the  same,  or  any  matter 
determined  therein,  and  it  shall  be  lawful  for  the  Commission 
in  its  discretion  to  grant  such  rehearing  if  sufficient  reason 
therefor  be  made  to  appear.  Applications  for  rehearing  shall  be 
governed  by  such  general  rules  as  the  Commission  may  establish. 
No  such  application  shall  excuse  any  carrier  from  complying 
with  or  obeying  any  decision,  order,  or  requirement  of  the  Com- 
mission, or  operate  in  any  manner  to  stay  or  postpone  the  enforce- 
ment thereof,  without  the  special  order  of  the  Commission.  In 
case  a  rehearing  is  granted  the  proceedings  thereupon  shall  con- 
form as  nearly  as  may  be  to  the  proceedings  in  an  original  hear- 
ing, except  as  the  Commission  may  otherwise  direct ;  and  if,  in  its 
judgment,  after  such  rehearing  and  the  consideration  of  all  facts, 
including  those  arising  since  the  former  hearing,  it  shall  appear 
that  the  original  decision,  order,  or  requirement  is  in  any  respect 
unjust  or  unwarranted,  the  Commission  may  reverse,  change,  or 


612  Acts    Regulating    Commerce,  [§  416 

modify  the  same  accordingly.  Any  decision,  order,  or  require- 
ment made  after  such  rehearing,  reversing,  changing,  or  modify- 
ing the  original  determination  shall  be  subject  to  the  same  pro- 
visions as  an  original  order. 

Secton  16-a  added  by  the  act  of  June  29,  1906. 

The  Commission  exercised  the  right  to  grant  rehearings  prior 
to  his  amendment.  Rehearing  not  granted  unless  Commission 
is  satisfied  result  would  be  changed.  Riddle  v.  Pittsburg  &  L.  E. 
R.  Co.,  1  I.  C.  C.  490,  1  I.  C.  R.  77i.  After  hearing  complaint 
on  pleadings  and  proof,  a  rehearing  will  not  be  granted  to  one 
not  a  party  to  the  proceedings.  Re  Petition  of  Produce  Ex- 
change, 2  I.  C.  C.  588,  2  I.  C.  R.  412.  Application  should 
be  verified  and  should  state  the  nature  of  the  new  testimony. 
Commission  may  of  its  own  motion  grant  a  rehearing  when  gen- 
eral public  interest  is  involved.  Rice  v.  Western  N.  Y.  &  P.  R. 
Co.,  2  I.  C.C.  389,  2  I.  C.  R.  298.  Will  not  reopen  just  to  redis- 
cuss  the  facts  and  law  already  before  the  Commission.  Myers 
V.  Penn.  Co.,  2  I.  C.  C.  573,  2  I.  C.  R.  403,  544.  Upon  rehear- 
ing with  additional  evidence  former  order  set  aside.  Bates  v. 
Penn.  R.  Co.,  4  I.  C.  C.  281,  3  I.  C.  R.  296.  Petition  must  be 
supported  by  proof  showing  prima  facie  error.  Proctor  & 
Gamble  v.  Cincinnati.  H.  &  D.  R.  Co.,  4  I.  C.  C.  443,  3  I.  C. 
R.  374.  A  form  of  petition.  Haddock  v.  Delaware,  L.  &  W. 
R.  Co.,  3  I.  C.  R.  410.  Application  denied.  Railroad  Com.  of 
Fla.  V.  Savannah,  F.  &  W.  Ry.  Co.,  5  I.  C.  C.  136.  3  I.  C.  R. 
750;  Delaware  State  Grange  v.  New  York,  P.  &  N.  R.  Co.,  5  I. 
C.  C.  161,  3  I.  C.  R.  828;  Brady  v.  Penn.  R.  Co.,  4  I.  C.  R. 
283 ;  Cattle  Raisers'  Asso.  v.  Chicago,  B.  &  Q.  R.  Co.,  10  I.  C. 
C.  83,  106,  12  I.  C.  C.  507,  514;  Johnston-Larimer  Dry  Goods 
Co.  V.  A.  T.  &  S.  F.  Ry.  Co.,  12  I.  C.  C.  188 ;  Poor  v.  Chicago, 
B.  &  Q.  R.  Co.,  12  I.e.  C.  469;  Muscogee  Commercial  Club 
V.  Mo.,  Kan.  &  Tex.  Ry.  Co.,  13  L  C.  C.  68;  Hussey  v.  Chicago, 
R.  I.  &  P.  Ry.  Co..  14  I.  C.  C.  215;  Randolph  Lumber  Co.  v. 
Seaboard  A.  L.  Ry.  Co.,  14  L  C.  C.  338.  Granted  to  correct 
the  record.  Lidependent  Refiners'  Asso.  v.  Penn.  R.  Co.,  4 
L  C.  R.  369.  Not  granted  when  sought  to  secure  rq^aration 
upon  questions  not  considered  in  original  case.  Rice  v.  Western 
N.  Y.  &  P.  R.  Co.,  6  L  C.  C.  455.  Rehearing  granted.  Page  v. 
Delaware,  L  &  W.  R.  Co.,  6  L  C.  C.  548.  Re  Matters  of  Al- 
lowance to  Elevators.  12  L  C.  C.  85.  13  L  C.  C.  498,  14  L  C.  C. 
R.  315,  320;  Thompson  Lumber  Co.  z:  111.  Cent.  R.  Co.,  14  I.  C.  C. 


I 


§  417.]  Annotated.  613 

566.  Rehearing  had,  but,  after  hearing,  dismissed  or  denied.  Cat- 
tle Raisers'  Asso.  v.  Ft.  Worth  &  D.  C.  Ry.  Co.,  1  I.  C.  C.  555-a; 
City  of  Danville  v.  So.  Ry.  Co.,  8  I.  C.  C.  571.  Rehearing 
granted  that  the  Commission  might  exercise  the  power  granted 
it  under  act  June  29,  1906.  Cattle  Raisers'  Asso.  v.  Mo.,  Kan.  & 
Tex.  Ry.  Co.,  12  I.  C.  C.  1  ;  Banner  Milling  Co.  v.  New  York 
C.  &  H.  R.  R.  Co.,  14  I.  C.  C.  398,  but  not  so  when  complainant 
neglected  to  enforce  in  the  courts  a  former  order.  Cattle  Raisers' 
Asso.  V.  Chicago,  B.  &  Q.  R.  Co.,  12  I.  C.  C.  6.  Power  to  grant 
discretionary.  City  of  Atchison  v.  Mo.  Pac.  Ry.  Co.,  12  I.  C.  C. 
254. 

§  417.  Procedure  before  the  Commission. — That  the  Com- 
mission may  conduct  its  proceedings  in  such  manner  as  will  best 
conduce  to  the  proper  dispatch  of  business  and  to  the  ends  of 
justice.  A  majority  of  the  Commission  shall  constitute  a  quorum 
for  the  transaction  of  business,  but  no  commissioner  shall  partici- 
pate in  any  hearing  or  proceeding  in  which  he  has  any  pecuniary 
interest.  Said  Commisson  may,  from  time  to  time,  make  or 
amend  such  general  rules  or  orders  as  may  be  requisite  for  the 
order  and  regulation  of  proceedings  before  it,  including  forms 
of  notices  and  the  service  thereof,  which  shall  conform,  as  nearly 
as  may  be,  to  those  in  use  in  the  courts  of  the  United  States. 
Any  party  may  appear  before  said  Commission  and  be  heard  in 
person  or  by  attorney.  Every  vote  and  ofificial  act  of  the  Com- 
mission shall  be  entered  of  record  and  its  proceedings  shall  be 
public  upon  the  request  of  either  party  interested.  Said  Com- 
mission shall  have  an  official  seal,  which  shall  be  judicially  no- 
ticed. Either  of  the  members  of  the  Commission  may  administer 
oaths  and  affirmations  and  sign  subpoenas. 

Original  section  seventeen,  except  the  words  "and  signsuo- 
poenas"  added  at  the  end  by  act  March  2,  1889. 

Under  authority  of  this  section,  the  Commission  has  formu- 
kited  rules  of  procedure,  ante.     Sections  268-291. 

§  418.  Salaries  and  Expenses  of  the  Commission. — That 
each  commissioner  shall  receive  an  annual  salary  of  ten  thousand 
dollars,  payable  in  the  same  manner  as  the  judges  of  the  courts 
of  the  United  States.  The  Commission  shall  appoint  a  secretary, 
who  shall  receive  an  annual  salary  of  five  thousand  dollars, 
payable  in  Hke  manner.  The  Commission  shall  have 
authority  to  employ  and  fix  the  compensation  of  such  other  em- 
ployees as  it  may  find  necessary  to  the  proper  performance  of 


614  Acts   Regui^ating    Commerce^  [§  419 

its  duties.  Until  otherwise  provided  by  law,  the  Commission 
may  hire  suitable  offices  for  its  use,  and  shall  have  authority  to 
procure  all  necessary  office  supplies.  Witnesses  summoned  be- 
fore the  Commission  shall  be  paid  the  same  fees  and  mileage  that 
are  paid  witnesses  in  the  courts  of  the  United  States. 

All  of  the  expenses  of  the  Commission,  including  all  necessary 
expenses  for  transportation  incurred  by  the  commissioners,  or 
by  their  employees  under  their  orders,  in  making  any  investiga- 
tion, or  upon  official  business  in  any  other  places  than  the  city 
of  Washington,  shall  be  allowed  and  paid  on  the  presentation 
of  itemized  vouchers  therefor  approved  by  the  chairman  of  the 
Commission. 

Section  eighteen  as  amended  by  act  of  March  2,  1889. 

The  original  act  made  the  employment  and  salaries  of  em- 
ployees subject  to  the  approval  of  the  Secretary  of  the  Interior, 
and  directed  that  cabinet  officer  to  furnish  the  Commission  with 
suitable  offices.  The  section  as  it  now  is,  is  the  amendment  of 
March  2,  1889,  changing  the  original  act  in  the  above  two  par- 
ticulars. The  salary  up  to  June  29,  1906,  was  seven  thousand 
five  hundred  dollars.  The  present  salary  is  made  to  conform  to 
section  twenty-four  of  the  present  act.  Cited,  Moseley  v.  United 
States,  35  Ct.  Claims,  355 ;  United  States  v.  Moseley,  187  U.  S. 
322,  47  L.  Ed.  198,  23  Sup.  Ct.  90. 

The  salary  of  the  secretary  was  formerly  $3500.00,  which  is 
the  amount  stated  in  the  act  of  1889. 

§  419.  Principal  Office  of  Commission  in  Washing-ton, 
but  May  Prosecute  Inquiries  Elsewhere. — The  principal  of- 
fice of  the  Commission  shall  be  in  the  city  of  Washington,  where 
its  general  sessions  shall  be  held ;  but  whenever  the  convenience 
of  the  public  or  the  parties  may  be  promoted,  or  delay  or  ex- 
pense prevented  thereby,  the  Commission  may  hold  special  ses- 
sions in  any  part  of  the  United  States.  It  may,  by  one  or  more 
of  the  commissioners,  prosecute  any  inquiry  necessary  to  its  du- 
ties, in  any  part  of  the  United  States,  into  any  matter  or  ques- 
tion of  fact  pertaining  to  the  business  of  any  common  carrier 
subject  to  the  provisions  of  this  act. 

Section  nineteen  as  originally  enacted. 

The  Commission,  or  some  of  its  members,  frequently  hold 
sessions  out  of  Washington  for  the  purpose  of  taking  evidence 
in  complaints  filed  with  it.  But  from  press  of  business  hearings 


I 


§  420.]  Annotated.  ,    615 

aWay  from  Washington  are  usually  conducted  by  Examiner  At- 
torneys of  Special  Examiners. 

§  420.  The  Commission  Is  Authorized  to  Investigate,  As- 
certain and  Report  the  Value  of  Railroad  Property. — That 
the  Commission  shall,  as  hereinafter  provided,  investigate,  ascer- 
tain, and  report  the  value  of  all  the  property  owned  or  used  by 
every  common  carrier  subject  to  the  provisions  of  this  act.  To 
enable  the  Commission  to  make  such  investigation  and  report, 
it  is  authorized  to  employ  such  experts  and  other  assistants  as 
may  be  necessary.  The  Commission  may  appoint  examiners  who 
shall  have  power  to  administer  oaths,  examine  witnesses,  and 
take  testimony.  The  Commission  shall  make  an  inventory  which 
shall  list  the  property  of  every  common  carrier  subject  to  the 
provisions  of  this  act  in  detail,  and  show  the  value  thereof  as 
hereinafter  provided,  and  shall  classify  the  physical  property, 
as  nearly  as  practicable,  in  conformity  with  the  classification  of 
expenditures  for  road  and  equipment,  as  prescribed  by  the  Inter- 
state Commerce  Commission. 

First.  In  such  investigation  said  Commission  shall  ascertain* 
and  report  in  detail  as  to  each  piece  of  property  owned  or  used 
by  said  common  carrier  for  its  purposes  as  a  common  carrier, 
the  original  cost  to  date,  the  cost  of  reproduction  new,  the  cost 
of  reproduction  less  depreciation,  and  an  analysis  of  the  meth- 
ods by  which  these  several  costs  are  obtained,  and  the  reason  for 
their  differences,  if  any.  The  Commission  shall  in  like  manner 
ascertain  and  report  separately  other  values,  and  elements  of 
value,  if  any,  of  the  property  of  such  common  carrier,  and  an 
analysis  of  the  methods  of  valuation  employed,  and  of  the  rea- 
sons for  any  differences  between  any  such  value,  and  each  of  the 
foregoing  cost  values. 

Second.  Such  investigation  and  report  shall  state  in  detail 
and  separately  from  improvements  the  original  cost  of  all  lands, 
rights  of  way,  and  terminals  owned  or  used  for  the  purposes  of 
a  common  carrier,  and  ascertained  as  of  the  time  of  dedication 
to  public  use,  and  the  present  value  of  the  same,  and  separately 
the  original  and  present  cost  of  condemnation  and  damages  or  of 
purchase  in  excess  of  such  original  cost  or  present  value. 

Third.  Such  investigation  and  report  shall  show  separately  the 
property  held  for  purposes  other  than  those  of  a  common  car- 
rier, and  the  original  cost  dnd  present  value  of  the  same,  together 
with  an  analysis  of  the  methods  of  valuation  employed. 


616    X  Acts   Regulating   Commerce,  [§  420. 

Fourth.  In  ascertaining  the  original  cost  to  date  of  the  prop- 
erty of  such  common  carrier  the  Commission,  in  addition  to  such 
other  elements  as  it  may  deem  necessary,  shall  investigate  and 
report  upon  the  history  and  organization  of  the  present  and  of 
any  previous  corporation  operating  such  property;  upon  any  in- 
creases or  decreases  of  stocks,  bonds,  or  other  securities,  in  any 
reorganization ;  upon  moneys  received  by  any  such  corporation  by 
reason  of  any  issues  of  stocks,  bonds,  or  other  securities;  upon 
the  syndicating,  banking,  and  other  financial  arrangements  under 
which  such  issues  were  made  and  the  expense  thereof ;  and  upon 
the  net  and  gross  earnings  of  such  corporations;  and  shall  also 
ascertain  and  report  in  such  detail  as  may  be  determined  by  the 
Commission  upon  the  expenditure  of  all  moneys  and  the  pur- 
poses for  which  the  same  were  expended. 

Fifth.  The  Commission  shall  ascertain  and  report  the  amount 
and  value  of  any  aid,  gift,  grant  of  right  of  way,  or  donation, 
made  to  any  such  common  carrier,  or  to  any  previous  corporation 
operating  such  property,  by  the  Government  of  the  United  States 
•or  by  any  State,  county,  or  municipal  government,  or  by  indi- 
viduals, associations,  or  corporations ;  and  it  shall  also  ascertain 
and  report  the  grants  of  land  to  any  such  common  carrier,  or 
any  previous  corporation  operating  such  property,  by  the  Govern- 
ment of  the  United  States,  or  by  any  State,  county,  or  municipal 
government,  and  the  amount  of  money  derived  from  the  sale  of 
any  portion  of  such  grants  and  the  value  of  the  unsold  portion 
thereof  at  the  time  acquired  and  at  the  present  time,  also,  the 
amount  and  value  of  any  concession  and  allowance  made  by  such 
common  carrier  to  the  Government  of  the  United  States,  or  to 
any  State,  county,  or  municipal  government  in  consideration  of 
such  aid,  gift,  grant,  or  donation. 

§  421.  Method  of  Procedure  to  Be  Prescribed  by  the 
Carrier. — Except  as  herein  otherwise  provided,  the  Commission 
shall  have  power  to  prescribe  the  method  of  procedure  to  be  fol- 
lowed in  the  conduct  of  the  investigation,  the  form  in  which  the 
results  of  the  valuation  shall  be  submitted,  and  the  classification 
of  the  elements  that  constitute  the  ascertained  value,  and  such 
investigation  shall  show  the  value  of  the  property  of  even.'  com- 
mon carrier  as  a  whole  and  separately  the  value  of  its  property 
in  each  of  the  several  States  and  Territories  and  the  District  of 
Columbia,  classified  and  in  detail  as  herein  required. 


§  422.]  Annotated.  617 

§  422.  How  Such  Investigation  Prosecuted. — Such  inves- 
tigation shall  be  commenced  within  sixty  days  after  the  approval 
of  this  act  and  shall  be  prosecuted  with  diligence  and  thorough- 
ness, and  the  result  thereof  reported  to  Congress  at  the  beginning 
of  each  regular  session  thereafter  until  completed. 

§  423.  Duty  of  Carriers  to  Aid  the  Investigation. — Every 
common  carrier  subject  to  the  provisions  of  this  act  shall  furnish 
to  the  Commission  or  its  agents  from  time  to  time  and  as  the 
Commission  may  require  maps,  profiles,  contracts,  reports  of 
engineers,  and  any  other  documents,  records,  and  papers,  or 
copies  of  any  or  all  of  the  same,  in  aid  of  such  investigation  and 
determination  of  the  value  of  the  property  of  said  common  car- 
rier, and  shall  grant  to  all  agents  of  the  Commission  free  access 
to  its  right  of  way,  its  property,  and  its  accounts,  records,  and 
memoranda  whenever  and  wherever  requested  by  any  such  duly 
authorized  agent,  and  every  common  carrier  is  hereby  directed 
and  required  to  cooperate  with  and  aid  the  Commission  in  the 
work  of  the  valuation  of  its  property  in  such  further  particulars 
and  to  such  extent  as  the  Commission  may  require  and  direct, 
and  all  rules  and  regulations  made  by  the  Commission  for  the 
purpose  of  administering  the  provisions  of  this  section  and  sec- 
tion twenty  of  this  act  shall  have  the  full  force  and  efifect  of  law. 
Unless  otherwise  ordered  by  the  Commission,  with  the  reasons 
therefor,  the  records  and  data  of  the  Commission  shall  be  open 
to  the  inspection  and  examination  of  the  public. 

§  424.  Valuations  to  Be  Revised  and  Corrected. — Upon 
the  completion  of  the  valuation  herein  provided  for,  the  Com- 
mission shall  thereafter  in  like  manner  keep  itself  informed  of 
all  extensions  and  improvements  or  other  changes  in  the  con- 
dition and  value  of  the  property  of  all  common  carriers,  and 
shall  ascertain  the  value  thereof,  and  shall  from  time  to  time, 
revise  and  correct  its  valuations,  showing  such  revision  and  cor- 
rection classified  and  as  a  whole  and  separately  in  each  of  the 
several  States  and  Territories  and  the  District  of  Columbia,  which 
valuations,  both  original  and  corrected,  shall  be  tentative  val- 
uations and  shall  be  reported  to  Congress  at  the  beginning  of  each 
regular  session. 

§  425.  Carrier  to  Make  Reports. — To  enable  the  Commis- 
sion to  make  such  changes  and  corrections  in  its  valuations  of 
each  class  of  property,  every  common  carrier  subject  to  the  pro- 


618  Acts   Re;gulating   Commerce,  [§  426. 

visions  of  this  Act  shall  make  such  reports  and  furnish  such  in- 
formation as  the  Commission  may  require. 

§  426.  Notice  of  Completion  of  Valuation. — Whenever  the 
Commission  shall  have  completed  the  tentative  valuation  of  the 
property  of  any  common  carrier  as  herein  directed,  and  before 
such  valuation  shall  become  final,  the  Commission  shall  give  no- 
tice by  registered  letter  to  the  said  carrier,  the  Attorney  General 
of  the  United  States,  the  governor  of  any  state  in  which  the 
property  so  valued  is  located,  and  to  such  additional  parties  as 
the  Commission  may  prescribe,  stating  the  valuation  placed  upon 
the  several  classes  of  property  of  said  carrier,  and  shall  allow 
thirty  days  in  which  to  file  a  protest  of  the  same  with  the  Com- 
mission. If  no  protest  is  filed  within  thirty  days,  said  valuation 
shall  become  final  as  of  the  date  thereof. 

§  427.  Hearings  before  Valuation  Fixed.— If  notice  of 
protest  is  filed,  the  Commission  shall  fix  a  time  for  the  hearing 
of  same,  and  shall  proceed  as  promptly  as  may  be  to  hear  and 
consider  any  matter  relative  and  material  thereto  which  may  be 
presented  in  support  of  any  such  protest  so  filed  as  aforesaid. 
If,  after  hearing  any  protest  of  such  tentative  valuation  under 
the  provisions  of  this  act,  the  Commission  shall  be  of  the  opinion 
that  its  valuation  should  not  become  final,  it  shall  make  such 
changes  as  may  be  necessary,  and  shall  issue  an  order  making 
such  corrected  tentative  valuation  final  as  of  the  date  thereof. 
All  final  valuations  by  the  Commission  and  the  classification 
thereof  shall  be  published  and  shall  be  prima  facie  evidence  of 
the  value  of  the  property  in  all  proceedings  under  the  a6t  to 
regulate  commerce  as  of  the  date  of  the  fixing  thereof,  and  in 
all  judicial  proceedings  for  the  enforcement  of  the  act  approved 
February  fourth,  eighteen  hundred  and  eighty-seven,  commonly 
known  as  "the  act  to  regulate  commerce,"  and  the  various  acts 
amendatory  thereof,  and  in  all  judicial  proceedings  brought  to 
enjoin,  set  aside,  annul,  or  suspend,  in  whole  or  in  part,  any  or- 
der of  the  Interstate  Commerce  Commission. 

§  428.  Eifect  of  Valuation  as  Evidence. — If  upon  the  trial 
of  any  action  involving  a  final  value  fixed  by  the  Commission,  evi- 
dence shall  be  introduced  regarding  such  value  which  is  found 
by  the  court  to  be  different  from  that  ofifered  upon  the  hearing 
before  the  Commission,  or  additional  thereto  and  substantially 
affecting  said  value,  the  court,  before  proceeding  to  render  judg- 
ment shall  transmit  a  copy  of  such  evidence  to  the  Commission, 


§  429.]  Annotated.  019 

and  shall  stay  further  proceedings  in  said  action  for  such  time 
as  the  court  shall  determine  from  the  date  of  such  transmission. 
Upon  the  receipt  of  such  evidence  the  Commission  shall  consider 
the  same  and  may  fix  a  final  value  different  from  the  one  fixed 
in  the  first  instance,  and  may  alter,  modify,  amend  or  rescind 
any  order  which  it  has  made  involving  said  final  value,  and  shall 
report  its  action  thereon  to  said  court  within  the  time  fixed  by 
the  court.  If  the  Commission  shall  alter,  modify,  or  amend  its 
order,  such  altered,  modified,  or  amended  order  shall  take  the 
place  of  the  original  order  complained  of  and  judgment  shall  be 
rendered  thereon  as  though  made  by  the  Commission  in  the  first 
instance.  If  the  original  order  shall  not  be  rescinded  or  changed 
by  the  Commission,  judgment  shall  be  rendered  upon  such  orig- 
inal order. 

§  429.  Applicable  to  Receivers — Penalty. — The  provisions 
of  this  section  shall  apply  to  receivers  of  carriers  and  operating 
trustees.  In  case  of  failure  or  refusal  on  the  part  of  any  car- 
rier, receiver,  'or  trustee  to  comply  with  all  the  recjuirements  of 
this  section  and  in  the  manner  prescribed  by  the  Commission  such 
carrier,  receiver,  or  trustee  shall  forfeit  to  the  United  States  the 
sum  of  five  hundred  dollars  for  each  such  offense  and  for  each 
and  every  day  of  the  continuance  of  such  offense,  such  for- 
feitures to  be  recoverable  in  the  same  manner  as  other  forfeitures 
provided  for  in  section  sixteen  of  the  act  to  regulate  commerce. 

§  430.  Jurisdiction  of  Courts  to  Aid. — That  the  district 
courts  of  the  United  States  shall  have  jurisdiction,  upon  the  ap- 
plication of  the  Attorney-General  of  the  United  States  at  the 
request  of  the  Commission,  alleging  a  failure  to  comply  with  or 
a  violation  of  any  of  the  provisions  of  this  section  by  any  com- 
mon carrier,  to  issue  a  writ  or  writs  of  mandamus  commanding 
such  common  carrier  to  comply  with  the  provisions  of  this  sec- 
tion. 

Sections  420  to  430  supra  inclusive  constitute  Sec.  19-a  of  the 
Act  to  Regulate  Commerce.  Section  19-a  being  added  by  the 
Amendment  of  March  1,  1913. 

§  431.  Requirements  as  to  Transportation  of  Employees 
of  the  Commission  w^ith.  Supplies  Therefor. — It  shall  be  the 
duty  of  every  common  carrier  by  railroad  whose  property  is  be- 
ing valued  under  the  act  of  March  first,  nineteen  hundred  and 
thirteen,  to  transport  the  engineers,  field  parties  and  other  em- 
ployees of  the  United  States  who  are  actually  engaged  in  making 


620  Acts   Regulating   Commerce,  [§  432. 

surveys  and  other  examination  of  the  physical  property  of  said 
carrier  necessary  to  execute  said  act  from  point  to  point  on  said 
railroad  as  may  be  reasonably  required  by  them  in  the  actual 
discharge  of  their  duties ;  and,  also,  to  move  from  point  to  point 
and  store  at  such  points  as  may  be  reasonably  required  the  cars 
of  the  United  States  which  are  being  used  to  house  and  maintain 
said  employees ;  and,  also,  to  carry  the  supplies  necessary  to 
maintain  said  employees  and  the  other  property  of  the  United 
States  actually  used  on  said  railroad  in  said  work  of  valuation. 
The  service  above  required  shall  be  regarded  as  a  special  service 
and  shall  be  rendered  under  such  forms  and  regulations  and  for 
such  reasonable  compensation  as  may  be  prescribed  by  the  Inter- 
state Commerce  Commission  and  as  will  insure  an  accurate  record 
and  account  of  the  service  rendered  by  the  railroad,  and  such 
evidence  of  transportation,  bills  of  lading,  and  so  forth,  shall 
be  furnished  to  the  Commission  as  may  from  time  to  time  be  re- 
quired by  the  Commission. 

Amendment  of  Aug.  1,  1914  to  act  March  1,  1913.  Sec.  19  of 
Act  to  Regulate  Commerce. 

§  432.  Annual  Reports  Required  and  What  They  Shall 
Contain.  Penalties  for  Failure  to  Make. — That  the  Com- 
mission is  hereby  authorized  to  require  annual  reports  from  all 
common  carriers  subject  to  the  provisions  of  this  act,  and  from 
the  owners  of  all  railroads  engaged  in  interstate  commerce 
as  defined  in  this  act  to  prescribe  the  manners  in 
which  such  reports  shall  be  made,  and  to  require  from 
such  carriers  specific  answers  to  all  questions  upon  which 
the  Commission  may  need  information.  Such  annual  reports 
shall  show  in  detail  the  amount  of  capital  stock  issued,  the 
amounts  paid  therefor,  and  the  manner  of  payment  for  the  same; 
the  dividends  paid,  the  surplus  fund,  if  any,  and  the  number  of 
stockholders ;  the  funded  and  floating  debts  and  the  interest  paid 
thereon ;  the  cost  and  value  of  the  carrier's  property,  franchises^ 
and  equipments ;  the  number  of  employees  and  the  salaries  paidj 
each  class  ;  [the  accidents  to  passengers,  employees,  and  other  per- 
sons, and  the  causes  thereof]  ;  the  amounts  expended  for  improve- 
ments each  year,  how  expended,  and  the  character  of  such  im- 
provements ;  the  earnings  and  receipts  from  each  branch  of  busi- 
ness and  from  all  sources ;  the  operating  and  other  expenses ;  the 
balances  of  profit  and  loss ;  and  a  complete  exhibit  of  the  financial 
operations  of  the  carrier  each  year,  including  an  annual  balance 


§  432.]  Annotated.  621 

sheet.  Such  reports  shall  also  contain  such  information  in  rela- 
tion to  rates  or  regulations  concerning  fares  or  freights,  or  agree- 
ments, arrangements,  or  contracts  affecting  the  same  as  the  Com- 
mission may  require ;  and  the  Commission  may,  in  its  discretion, 
for  the  purpose  of  enabling  it  the  better  to  carry  out  the  pur- 
poses of  this  act,  prescribe  a  period  of  time  within  which  all  com- 
mon carriers  subject  to  the  provisions  of  this  act  shall  have,  as 
near  as  may  be,  a  uniform  system  of  accounts,  and  the  manner 
in  which  such  accounts  shall  be  kept. 

Said  detailed  reports  shall  contain  all  the  required  statistics 
for  the  period  of  twelve  months  ending  on  the  thirtieth  day  of 
June  in  each  year,  or  on  the  thirty-first  day  of  December  in  each 
year  if  the  Commission  by  order  substitute  that  period  for  the 
year  ending  June  thirtieth,  and  shall  be  made  out  under  oath 
and  filed  with  the  Commission  at  its  office  in  Washington  zvithin 
three  months  after  the  close  of  the  year  for  zvhich  the  report  is 
made,  [on  or  before  the  thirtieth  day  of  September  then  next  fol- 
lowing] ,  unless  additional  time  be  granted  in  any  case  by  the  Com- 
mission; and  if  any  carrier,  person,  or  corporation  subject  to  the 
provisions  of  this  act  shall  fail  to  make  and  file  said  annual  re- 
ports within  the  time  above  specified,  or  within  the  time  extended 
by  the  Commission,  for  making  and  filing  the  same  or  shall  fail 
to  make  specific  answer  to  any  question  authorized  by  the  pro- 
visions of  this  section  within  thirty  days  from  the  time  it  is 
lawfully  required  so  to  do,  such  party  shall  forfeit  to  the  United 
States  the  sum  of  one  hundred  dollars  for  each  and  every  day  it 
shall  continue  to  be  in  default  with  respect  thereto.  The  Com- 
mission shall  also  have  authority  by  general  or  special  orders 
to  require  said  carriers,  or  any  of  them,  to  file  monthly  reports 
of  earnings  and  expenses,  and  to  file  periodicfll  or  special,  or  both 
periodical  and  special,  reports  concerning  any  ^natters  about  zvhich 
the  Commission  is  authorised  or  required  by  this  or  any  other  lazv 
to  inquire  or  to  keep  itself  informed  or  zvhich  it  is  required  to  en- 
force; and  such  periodical  or  special  reports  shall  be  under  oath 
whenever  the  Commission  so  requires;  and  if  any  such  carrier 
shall  fail  to  make  and  file  any  such  periodical  or  special  report 
within  the  time  fixed  by  the  Commission,  it  shall  be  subject  to  the 
forfeitures  last  above  provided. 

Said  forfeiture  shall  be  recovered  in  the  manner  provided  for 
the  recovery  of  forfeitures  under  the  provisions  of  this. Act. 

The  oath  required  by  this  section  may  be  taken  before  any  per- 


622  Acts   Regulating   Commerce,  [§  432. 

son  authorized  to  administer  an  oath  by  the  laws  of  the  State  in 
which  the  same  is  taken. 

Paragraphs  1  to  4  of  Section  20  as  amended  by  Act  June  18, 
1910.  The  words  added  by  the  amendment  are  italicized.  The 
Act  June  29,  1906  required  an  annual  report  to  be  made  "not 
later  than  the  30th  day  of  September."  The  words  enclosed  in 
brackets  in  this  Section  were  in  the  act  of  1906  but  repealed  by 
act  1910. 

The  original  law  read : 

"That  the  Commission  is  hereby  authorized  to  require  annual 
reports  from  all  common  carriers  subject  to  the  provisions  of 
this  act,  to  fix  the  time  and  prescribe  the  manner  in  which  such 
reports  shall  be  made,  and  to  require  from  such  carriers  specific 
answers  to  all  questions  upon  which  the  Commission  may  need 
information.  Such  annual  reports  shall  show  in  detail  the 
amount  of  capital  stock  issued,  the  amounts  paid  therefor,  and 
the  manner  of  payment  for  the  same ;  the  dividends  paid,  the 
surplus  fund,  if  any,  and  the  number  of  stockholders;  the  funded 
and  floating  debts  and  the  interest  paid  thereon ;  the  cost  and 
value  of  the  carrier's  property,  franchises  and  equipment;  the 
number  of  employees  and  the  salaries  paid  each  class;  the 
amounts  expended  for  improvements  each  year,  how  expended, 
and  the  character  of  such  improvements ;  the  earnings  and  re- 
ceipts from  each  branch  of  business  and  f rorn  all  sources ;  the 
operating  and  other  expenses ;  the  balances  of  profit  and  loss ; 
and  a  complete  exhibit  of  the  financial  operations  of  the  car- 
rier each  year,  including  an  annual  balance  sheet.  Such  re- 
ports shall  also  contain  such  information  in  relation  to  rates 
or  regulations  concerning  fares  or  freights,  or  agreements,  ar- 
rangements, or  contracts  with  other  common  carriers,  as  the  Com- 
mission may  require ;  and  the  said  Commission  may,  within  its 
discretion,  for  the  purpose  of  enabling  it  the  better  to  carry 
out  the  purposes  of  this  act,  prescribe  (if  in  the  opinion  of  the 
Commission  it  is  practicable  to  prescribe  such  uniformity  and 
methods  of  keeping  accounts),  a  period  of  time  within  which 
all  common  carriers  subject  to  the  provisions  of  this  act  shall 
have,  as  near  as  may  be,  a  uniform  system  of  accounts,  and  the 
manner  in  which  such  accounts  shall  be  kept." 

The  Commission  formerly  required  an  apportionment  of  ex- 
penses between  freight  and  passenger  business,  this  being  found 
to   be   arbitrary  and   valueless   was   discontinued.     Consolidated 


§  433.]  Annotate;d.  623 

Forwarding  Co.  v.  So.  Ry.  Co.,  10  I.  C.  C.  590,  600.  The  old 
law  did  not  apply  to  a  carrier  doing  purely  intrastate  business. 
Int.  Com.  Com.  z-.  Bellaire,  Z.  &  C.  Ry.  Co.,  77  Fed.  942;  United 
States  V.  Chicago,  K.  &  S.  R.  Co.,  81  Fed.  783.  But  does  apply 
when  the  state  carrier  joins  in  a  through  rate  of  charges.  United 
States  ex  rel.  Int.  Com.  Com.  z'.  Seaboard  Ry.  Co.,  82  Fed.  563, 
but  mandamus  should  not  issue  to  compel  a  report  by  an  officer 
who  has  resigned.  Same  case,  85  Fed.  955.  Act  applies  when 
state  carrier  engages  in  transporting  interstate  commerce,  even 
though  not  on  a  through  bill  of  lading  and  charging  its  full  local 
charges.  United  States  v.  Colorado  &  N.  W.  R.  Co.,  157  Fed. 
321,  342,  85  C.  C.  A.  27.  Language  from  this  section  quoted  as 
showing  the  scope  of  the  Commission's  power  to  make  investiga- 
tions. Int.  Com.  Com.  v.  Harriman,  157  Fed.  432,  438.  Re- 
versed. Harriman  v.  Int.  Com.  Com.,  211  U.  S.  407,  53  L.  Ed. 
253,  29  Sup.  Ct.  115.  Federal  courts  prior  to  June  29,  1906, 
had  no  jurisdiction  by  original  proceeding  in  mandamus  to  com- 
pel filing  of  reports.  United  States  v.  Lake  S.  &  M.  S.  Ry.  Co., 
197  U.  S.  536,  49  L.  Ed.  870,  25  Sup.  Ct.  538.  States  may  re- 
quire reports  not  inconsistent  with  act  of  Congress.  People  v. 
Chicago,  I.  &  L.  Ry.  Co.,  223  111.  581,  79  N.  E.  144. 

Notes  of  Decisions  Rendered  Since  1909. 

Regulations  prescribed  relating  to  separation  of  operating  ex- 
penses. Re  Separation  of  Operating  Expenses,  30  I.  C.  C.  676. 
Power  of  the  Commission  stated  as  to  hours  of  service  of  em- 
ployees. B.  &  O.  R.  Co.  V.  Int.  Com.  Com.,  221  U.  S.  612,  55  L. 
Ed.  878,  31  Sup.  Ct.  621.  As  to  Water  Carriers.  Int.  Com.  Com. 
V.  Goodrich  Transit  Co.,  224  U.  S.  194,  56  L.  Ed.  729,  32  Sup.  Ct. 
436;  The  statute  is  valid  and  the  powers  of  the  Commission  dis- 
cussed. Kansas  City  So.  Ry.  Co.  v.  United  States,  231  U.  S. 
423,  58  L.  Ed.  296,  34  Sup.  Ct.  125.  Affirming,  same  styled 
case,  204  Fed.  641,  Opin.  Com.  Ct.  No.  56,  p.  641. 

§  433.  Commission  May  Prescribe  Form  of  Keeping  Ac- 
counts and  Inspect  Same. — The  Commission  may,  in  its  dis- 
cretion, prescribe  the  forms  of  any  and  all  accounts,  records,  and 
memoranda  to  be  kept  by  carriers  subject  to  the  provisions  of 
this  act,  including  the  accounts,  records,  and  memoranda  of  the 
movement  of  traffic  as  well  as  the  receipts  and  expenditures  of 
moneys.  The  Commission  shall  at  all  times  have  access  to  all 
accounts,   records,   and   memoranda  kept  by   carriers   subject   to 


624  Acts   Regulating   Commerce,  [§  434. 

this  act,  and  it  shall  be  unlawful  for  such  carriers  to  keep  any 
other  accounts,  records,  or  memoranda  than  those  prescribed  or 
approved  by  the  Commission,  and  it  may  employ  special  agents 
or  examiners,  who  shall  have  authority  under  the  order  of  the 
Commission  to  inspect  and  examine  any  and  all  accounts,  records, 
and  memoranda  kept  by  such  carriers.  This  provision  shall  apply 
to  receivers  of  carriers  and  operating  trustees. 

Fifth  paragraph  of  section  twenty  as  amended  by  act  of  June 
29,  1906. 

In  compliance  with  and  under  the  authority  of  this  section,  the 
Commission  has  prescribed  an  elaborate  and  uniform  system  of 
accounts  for  carriers  subject  to  the  act. 

Notes  of  Decisions  Rendered  Since  1909. 

Records  of  the  transit  house  are  subject  to  the  provision  of 
the  Section.  Transit  case,  24  I.  C.  C.  340,  351.  See  Re  Separa- 
tion of  Operating  Expenses,  30  I.  C.  C.  676,  and  Rules  Govern- 
ing the  Separation  of  Operating  Expenses  between  Freight  and 
Passenger  Service  issued  by  the  Commission,  effective  July  1, 
1915. 

§  434.  Penalties  for  Failure  to  Keep  Accounts  and  for 
Falsifying  the  Record. — In  case  of  failure  or  refusal  on  the 
part  of  any  such  carrier,  receiver,  or  trustee  to  keep  such  ac- 
counts, records,  and  memoranda  on  the  books  and  in  the  man- 
ner prescribed  by  the  Commission,  or  to  submit  such  accounts, 
records,  or  memoranda  as  are  kept  to  the  inspection  of  the  Com- 
mission or  any  of  its  authorized  agents  or  examiners,  such  car- 
rier, receiver,  or  trustee  shall  forfeit  to  the  United  States  the 
sum  of  five  hundred  dollars  for  each  such  offense  and  for  each 
and  every  day  of  the  continuance  of  such  offense,  such  forfeitures 
to  be  recoverable  in  the  same  manner  as  other  forfeitures  pro- 
vided- for  in  this  act. 

Any  person  who  shall  willfully  make  any  false  entry  in  the 
accounts  of  any  book  of  accounts  or  in  any  record  or  memoranda 
kept  by  a  carrier,  or  who  shall  willfully  destroy,  mutilate,  alter, 
or  by  any  other  means  or  device,  falsify  the  record  of  any  such 
account,  record,  or  memoranda,  or  who  shall  willfully  neglect  or 
fail  to  make  full,  true,  and  correct  entries  in  such  accounts, 
records,  or  memoranda  of  all  facts  and  transactions  appertain- 
ing to  the  carrier's  business,  or  shall  keep  any  other  accounts, 
records,  or  memoranda  than  those  prescribed  or  approved  by  the 
Commission,  shall  be  deemed  guilty  of  a  misdemeanor  and  shall 


§  435.]  Annotated.  625 

be  subject,  upon  conviction  in  any  court  of  the  United  States  of 
competent  jurisdiction,  to  a  fine  of  not  less  than  one  thousand 
dollars  nor  more  than  five  thousand  dollars,  or  imprisonment  for 
a  term  not  less  than  one  year  nor  more  than  three  years,  or  both 
such  fine  and  imprisonment. 

Sixth  and  part  of  seventh  paragraphs  of  section  twenty  as 
amended  by  act  June  29,  1906. 

§  435.  The  Commission  May  Permit  the  Destruction  of 
Papers. — That  the  Commission  may  in  its  discretion  issue  or- 
ders specifying  such  operating,  accounting,  or  financial  papers, 
records,  books,  blanks,  tickets,  stubs,  or  documents  of  carriers 
which  may,  after  a  reasonable  time,  be  destroyed,  and  prescrib- 
ing the  length  of  time  such  books,  papers,  or  documents  shall  be 
preserved. 

Last  part  of  paragraph  7  of  Section  20  as  amended  by  act  of 
June  29,  1906. 

§  436.  Penalty  for  an  Examiner  Divulging-  Information 
Received  as  Such. — Any  examiner  who  divulges  any  fact  or 
information  which  may  come  into  his  knowledge  during  the 
course  of  such  examination,  except  in  so  far  as  he  may  be  di- 
rected by  the  Commission  or  by  a  court  or  judge  thereof,  shall 
be  subject,  upon  conviction  in  any  court  of  the  United  States  of 
competent  jurisdiction,  to  a  fine  of  not  more  than  five  thousand 
dollars  or  imprisonment  for  a  term  not  exceeding  two  years,  or 
both. 

Eighth  paragraph  of  section  twenty  as  amended  by  act  June 
29,  1906. 

§  437.  United  States  Circuit  and  District  Courts  May, 
upon  Application  of  Attorney- General  at  Request  of  Com- 
mission, Enforce  Provisions  of  Act, — That  the  circuit  and  dis- 
trict courts  of  the  United  States  shall  have  jurisdiction,  upon  the 
application  of  the  Attorney-General  of  the  United  States  at  the 
request  of  the  Commission,  alleging  a  failure  to  comply  with  or 
a  violation  of  any  of  the  provisions  of  said  act  to  regulate  com- 
merce or  of  any  act  supplementary  thereto  or  amendatory  thereof 
by  any  common  carrier,  to  issue  a  writ  or  writs  of  mandamus 
commanding  such  common  carrier  to  comply  with  the  provisions 
of  said  acts,  or  any  of  them. 

Ninth  paragraph  of  section  twenty  as  amended  by  act  June 
29,  1906.  ■ 

The  authority  with   reference  to   reports   of   the  carriers   did 


626  Acts   Regulating   Commerce,  [§  438. 

not  exist  prior  to  the  Hepburn  Act.     United  States  v.  Lake  S.  & 
M.  S.  Ry.  Co.,  197  U.  S.  536,  49  L.  Ed.  870,  25  Sup.  Ct.  538. 

Circuit  courts  having  been  aboHshed,  district  courts  have  juris- 
diction. 

Notes  of  Decisions  Rendered  Since  1909. 

"Does  not  confer  on  the  court  power  to  compel  by  mandamus, 
in  aid  of  an  investigation  by  the  Interstate  Commerce  Commis- 
sion pursuant  to  a  resolution  of  the  Senate  requiring  the  investi- 
gation, a  railroad  to  disclose  the  amount  of  stocks  and  bonds 
of  another  railroad  company  it  owns  or  controls,  and  whether 
the  two  railroads  serve  the  same  territory  in  whole  or  in  part, 
and  whether,  under  separate  ownership,  they  will  be  competitors, 
and  other  facts  showing  further  relations  between  the  two  rail- 
roads, and  showing  whether  such  relations  restrict  competition 
and  maintain  fixed  rates ;  since  the  investigation  does  not  re- 
late to  interstate  commerce  as  regulated  by  the  Interstate  Com- 
merce Act,  but  relates  perhaps  to  other  legislation,  such  as  the 
anti-trust  act,"  nor  does  the  section  authorize  courts  to  compel 
a  disclosure  of  privileged  communication.  United  States  v.  L.  & 
N.  R.  Co.,  212  Fed.  486.  Case  affirmed.  United  States  v.  L.  & 
N.  R.  Co.,  236  U.  S.  318,  59  L.  Ed.  — ,  35  Sup.  Ct.  363. 

§  438.  Commission  May  Employ  Agents  or  Examiners. 
— And  to  carry  out  and  give  effect  to  the  provisions  of  said  acts, 
or  any  of  them,  the  Commission  is  hereby  authorized  to  employ 
special  agents  or  examiners  who  shall  have  power  to  administer 
oaths,  examine  witnesses,  and  receive  evidence. 

Tenth  paragraph  of  section  twenty  as  amended  bv  act  lune 
29,  1906. 

§  439.  Receiving  Carrier  Liable  for  Loss,  Remedy  Cu- 
mulative.— That  any  common  carrier,  railroad,  or  transporta- 
tion company  receiving  property  for  transportation  from  a  point 
in  one  state  to  a  point  in  another  state  shall  issue  a  receipt  or  bill 
of  lading  therefor,  and  shall  be  liable  to  the  lawful  holder  thereof 
for  any  loss,  damage,  or  injury  to  such  property  caused  by  it  or 
by  any  common  carrier,  railroad,  or  transportation  company  to 
which  such  property  may  be  delivered  or  over  whose  line  or  lines 
such  property  may  pass,  and  no  contract,  receipt,  rule,  or  regula- 
tion shall  exempt  such  common  carrier,  railroad,  or  transporta- 
tion company  from  any  liability  hereby  imposed :  Provided,  That 
nothing  in  this  section  shall  deprive  any  holder  of  such  receipt 


§  439.]  Annotated.  627 

or  bill  of  lading  of  any  remedy  or  right  of  action  which  he  has 
tnider  existing  law. 

That  the  common  carrier,  railroad,  or  transportation  company 
issuing  such  receipt  or  bill  of  lading  shall  be  entitled  to  recover 
from  the  common  carrier,  railroad,  or  transportation  company 
on  whose  line  the  loss,  damage,  or  injury  shall  have  been  sus- 
tained the  amount  of  such  loss,  damage,  or  injury  as  it  may  be 
required  to  pay  to  the  owners  of  such  property,  as  may  be  evi- 
denced by  any  receipt,  judgment,  or  transcript  thereof. 

No  suit  brought  in  any  State  court  of  competent  jurisdiction 
against  a  railroad  company,  or  other  corporation,  or  person,  en- 
gaged in  and  carrying  on  the  business  of  a  common  carrier,  to 
recover  damages  for  delay,  loss  of,  or  injury  to  property  received 
for  transportation  by  such  common  carrier  under  section  twenty 
of  the  Act  to  regulate  commerce,  approved  February  fourth, 
eighteen  hundred  and  eighty-seven,  as  amended  June  twenty- 
ninth,  nineteen  hundred  and  six,  April  thirteenth,  nineteen  hun- 
dred and  eight,  February  twenty-fifth,  nineteen  hundred  and 
nine,  and  June  eighteenth,  nineteen  hundred  and  ten,  shall  be  re- 
moved to  any  court  of  the  United  States  where  the  matter  in  con- 
troversy does  not  exceed,  exclusive  of  interest  and  costs,  the 
sum  or  value  of  $3,000. 

Last  three  paragraphs  of  section  twenty  as  amended  by  sec- 
tion 7  of  the  act  June  29,  1906.  and  January  20,  1914. 

This  section  is  fully  and  ably  discussed  and  authorities  cited 
in  Re  Released  Rates,  13  I.  C.  C.  550,  et  seq.  Provision  con- 
stitutional. Smeltzer  v.  St.  L.  &  S.  F.  R.  Co.,  158  Fed.  649; 
Riverside  Mills  v.  Atlantic  C.  L.  R.  Co.,  168  Fed.  987,  990.  A 
bill  of  lading  limiting  liability  to  fifty  dollars  void.  Green- 
wall  V.  Weir,  111  N.  Y.  Sup.  235,  59  Misc.  Rep.  431 ;  Schutte  v. 
Weir,  111  N.  Y.  Sup.  240,  59  Miss.  Rep.  438;  Silverman  v.  Weir, 
1 14  N.  Y.  Sup.  6.  Section  valid.  So.  Pac.  Co.  v.  Crenshaw  Bros., 
5  Ga.  App.  675,  65  S.  E.  865 ;  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
Crow,  117  S.  W.  170. 

Notes  of  Decisions  Rendered  Since  1909. 

The  carrier  not  permitted  to  avoid  this  liability.  Coal  Rates  on 
Stony  Fork  Branch,  26  I.  C.  C.  168,  174;  Adams  Exp.  Co.  v. 
Cronniger,  226  U.  S.  491,  57  L.  Ed.  314,  33  Sup.  Ct.  148,  44  L. 
R.  A.  (N.  S.),  257 ;  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  Latta,  266 
U.  S.  519,  57  L.  Ed.  328,  33  Sup.  Ct.  155,  reversing  judgments. 


628  Acts   Regulating   Commerce,  [§  439. 

Latta  V.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  172  F.  80,  97  C.  C.  A. 
198.  and  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  Latta,  184  Fed.  987, 
106  C.  C.  A.  664.  See  also  holding  that  there  may  be  a  limita- 
tion of  the  amount  that  may  be  recovered  for  loss.  See  also 
Wells-Fargo  Co.  v.  Neiman-Marcus  Co.,  227  U.  S.  469,  57  L. 
Ed.  600,  33  Sup.  Ct.  267;  M.  K.  &  T.  R.  Co.  v.  Harriman,  227 
U.  S.  657,  57  L.  Ed.  690,  33  Sup.  Ct.  397;  reversing  Harriman 

Bros.  V.  M.  K.  &  T.  R.  R.  Co., Tex.  Civ.  App. 128  S. 

W.  932 ;  Kansas  C.  S.  'R.  Co.  v.  Carl,  227  U.  S.  639,  57  L.  Ed. 
683,  33  Sup.  Ct.  227,  reversing  Carl  v.  Kansas  C.  S.  R.  Co.,  91 
Ark.  97,  121  S.  W.  932,  134  Am.  St.  Rep.  56.  This  limitation 
being  stated  in  a  tariff  sufficient.  B.  &  M.  R.  Co.  v.  Hooker,  233 
U.  S.  97,  58  L.  Ed.  901,  34  Sup.  Ct.  526,  reversing  Hooker  v. 
B.  &  M.  R.  Co.,  209  Mass.  598,  95  N.  E.  945,  Ann.  Cas.  1912B 
669.  Validity  of  statute  discussed.  N.  C.  &  St.  L.  R.  Co.  v.  Burn- 
side  Mills,  219  U.  S.  186,  55  L.  Ed.  167,  31  Sup.  Ct.  164,  31  L. 
R.  A.  (N.  SO,  7;  Louisville  &  N.  R.  Co.  v.  Scott,  219  U.  S.  209, 
55  L.  Ed.  183,  31  Sup.  Ct.  171  ;  Galveston,  H.  &  S.  A.  R.  Co.  v. 
Wallace,  223  U.  S.  481,  56  L.  Ed.  516,  32  Sup.  Ct.  205,  and  see 
note  to  56  L.  Ed.  517-519. 

That  the  shipper  selects  the  route  makes  no  difference.  Nor- 
folk &  W.  R.  Co.  V.  Dixie  Tobacco  Co.,  228  U.  S.  593,  57  L. 
Ed.  980,  33  Sup.  Ct.  609,  affirming  Dixie  Tobacco  Co.  v.  N.  Sz 
W.  R.  Co.,  Ill  Va.  813,  69  S.  E.  1106. 

This  Section  supersedes  all  state  regulation  on  the  same  sub- 
ject. C.  B.  &  Q.  R.  R.  Co.  V.  Miller,  226  U.  S.  513,  57  L.  Ed. 
323,  33  Sup.  Ct.  155;  reversing  judgment  Miller  v.  Chicago,  B. 
&  Q.  R.  Co.,  123  N.  W.  449,  85  Neb.  458;  Chicago,  St.  P.,  M.  & 
O.  Ry.  Co.  V.  Latta,  226  U.  S.  519,  57  L.  Ed.  328,  33  Sup.  Ct. 
155,  reversing  judgments  Latta  v.  Chicago,  St.  P.,  M.  &  O.  Ry. 
Co.,  172  Fed.  850,  97  C.  C.  A.  198,  and  Chicago,  St.  P.  M.  &  O.  Ry. 
Co.  V.  Latta,  184  F.  987,  106  C.  C.  A.  664 ;  Chicago,  R.  L  &  P. 
Ry.  Co.  V.  Cramer,  232  U.  S.  490,  58  L.  Ed.  697,  34  Sup.  Ct.  383, 
reversing  Cramer  v.  C.  R.  L  &  P.  Ry.  Co.,  153  Iowa  103,  133  N. 
W  387;  A.  T.  &  S.  F.  Ry.  Co.  v.  Robinson,  233  U.  S.  173,  58 
L.  Ed.  90,  34  Sup.  Ct.  556,  reversing  Robinson  v.  A.  T.  &  S.  F. 
Ry.  Co.,  36  Okla.  435,  129  Pac.  20;  Pierce  Co.  v.  Wells-Fargo, 
236  U.  S.  278,  59  L.  Ed.  — ,  35  Sup.  Ct.  351.  Intermediate  car- 
rier not  at  fault  can  not  be  sued  for  loss  or  damage.  Hudson  v. 
Chicago  St.  P.  M.  &  O.  Ry.  Co.,  226  Fed.  38. 


§  440.]  Annotated.  629 

§  440.  Carrier  Liable  for  Full  Value  of  Property  Trans- 
ported— Cummins  Amendment. — "That  any  common  carrier, 
railroad,  or  transportation  company  receiving  property  for  trans- 
portation from  a  point  in  one  State  to  a  point  in  another  State 
shall  issue  a  receipt  or  a  bill  of  lading  therefor,  and  shall  be  liable 
to  the  lawful  holder  thereof  for  any  loss,  damage,  or  injury  to 
such  property  caused  by  it  or  by  any  common  carrier,  railroad,  or 
transportation  company  to  which  such  property  may  be  delivered, 
or  over  whose  line  or  lines  such  property  may  pass,  and  no  con- 
tract, receipt,  rule,  or  regulation  shall  exempt  such  common  car- 
rier, railroad,  or  transportation  company  from  the  liability  hereby 
imposed :  Provided,  That  nothing  in  this  section  shall  deprive  any 
holder  of  such  receipt  or  bill  of  lading  of  any  remedy  or  right  of 
action  which  he  has  under  existing  law,"  be,  and  the  same  is 
hereby,  amended  so  as  to  read  as  follows,  to  wit : 

"That  any  common  carrier,  railroad,  or  transportation  com- 
pany subject  to  the  provisions  of  this  act  receiving  property  for 
transportation  from  a  point  in  one  State  or  Territory  or  the  Dis- 
trict of  Columbia  to  a  point  in  another  State,  Territory,  District 
of  Columbia,  or  from  any  point  in  the  United  States  to  a  point 
in  an  adjacent  foreign  country  shall  issue  a  receipt  or  bill  of  lad- 
ing therefor,  and  shall  be  liable  to  the  lawful  holder  thereof  for 
any  loss,  damage,  or  injury  to  such  property  caused  by  it  or  by 
any  common  carrier,  railroad,  or  transportation  company  to 
which  such  property  may  be  delivered  or  over  whose  line  or 
lines  such  property  may  pass  within  the  United  States  or  within 
an  adjacent  foreign  country  when  transported  on  a  through  bill 
of  lading,  and  no  contract,  receipt,  rule,  regulation,  or  other  lim- 
itation of  any  character  whatsoever,  shall  exempt  such  common 
carrier  railroad,  or  transportation  company  from  the  liability 
hereby  imposed ;  and  any  such  common  carrier,  railroad,  or 
transportation  company  so  receiving  property  for  transportation 
from  a  point  in  one  State,  Territory,  or  the  District  of  Colum- 
bia to  a  point  in  another  State  or  Territory,  or  from  a  point  in  a 
State  or  Territory  to  a  point  in  the  District  of  Columbia,  or  from 
any  point  in  the  United  States  to  a  point  in  an  adjacent  foreign 
country,  or  for  transportation  wholly  within  a  Territory  shall 
be  liable  to  the  lawful  holder  of  said  receipt  or  bill  of  lading  or 
to  any  party  entitled  to  recover  thereon,  whether  such  receipt  or 
bill  of  lading  has  been  issued  or  not,  for  the  full  actual  loss,  dam- 
age, or  injury  to  such  property  caused  by  it  or  by  any  such  com- 


630  Acts  Regulating  Comme;rce;,  [§  440. 

mon  carrier,  railroad,  or  transportation  company  to  which  such 
property  may  he  dehvered  or  over  whose  line  or  lines  such  prop- 
erty may  pass  within  the  United  States  or  within  an  adjacent  for- 
eign country  when  transported  on  a  through  bill  of  lading,  not- 
withstanding any  limitation  of  liability  or  limitation  of  the  amount 
of  recovery  or  representation  or  agreement  as  to  value  in  any 
such  receipt  or  bill  of  lading,  or  in  any  contract,  rule,  regulation, 
or  in  any  tariff  filed  with  the  Interstate  Commerce  Commission ; 
and  any  such  limitation,  without  respect  to  the  manner  or  form 
in  which  it  is  sought  to  be  made  is  hereby  declared  to  be  unlaw- 
ful and  void :  Provided,  liozvcver,  That  if  the  goods  are  hidden 
from  view  by  wrapping,  boxing,  or  other  means,  and  the  carrier 
is  not  notified  as  to  the  character  of  the  goods,  the  carrier  may 
require  the  shipper  to  specifically  state  in  writing  the  value  of  the 
goods,  and  the  carrier  shall  not  be  liable  beyond  the  amount  so 
specifically  stated,  in  which  case  the  Interstate  Commerce  Com- 
mission may  establish  and  maintain  rates  for  transportation,  de- 
pendent upon  the  value  of  the  property  shipped  as  specifically 
stated  in  writing  by  the  shipper.  Such  rates  shall  be  published 
as  are  other  rate  schedules :  Provided  further,  That  nothing  in 
this  section  shall  deprive  any  holder  of  such  receipt  or  bill  of 
lading  of  any  remedy  or  right  of  action  which  he  has  under  the 
existing  law :  Provided  further,  That  it  shall  be  unlawful  for  any 
such  common  carrier  to  provide  by  rule,  contract,  regulation,  or 
otherwise  a  shorter  period  for  giving  notice  of  claims  than  ninety 
days  and  for  the  filing  of  claims  for  a  shorter  period  than  four 
months,  and  for  the  institution  of  suits  than  two  years :  Provided, 
however.  That  if  the  loss,  damage,  or  injury  complained  of  was 
due  to  delay  or  damage  while  being  loaded  or  unloaded,  or  dam- 
aged in  transit  by  carelessness  or  negligence,  then  no  notice  of 
claim  nor  filing  of  claim  shall  be  required  as  a  condition  prece- 
dent to  recovery." 

Sec.  2.  That  this  act  shall  take  eft'ect  and  be  in  force  from 
ninety  days  after  its  passage. 

The  foregoing  section  is  the  act  of  March  4,  1915,  known  as 
the  Cummins  Amendment  to  Section  20  of  the  original  act.  Sec- 
tion 7  of  the  act  of  1906. 

The  amendment  did  not  automatically  increase  rates  when 
the  schedule  of  tariff  provided  for  higher  rates  where  there  was 
no  limit  to  the  valuation ;  it  made  the  carrier  liable  for  the  full 
value  of  the  property,  does  not  apply  to  export  or  import  ship- 


§  441.]  Annotated.  631 

ments,  ''character"  defined  and  the  act  appUes  to  baggage.  Cum- 
mins Amendment,  33  I.  C.  C.  682.  Carmack  &  Cummins 
Amendments  discussed.  Louisiana  State  Rice  Milling  Co.  v.  M. 
L.  &  T.  R.  Co.,  34  I.  C.  C.  511. 

§  441.  Annual  Reports  by  Commission  to  Congress. — 
That  the  Commission  shall,  on  or  before  the  first  day  of  Decem- 
ber in  each  year,  make  a  report,  which  shall  be  transmitted  to 
Congress,  and  copies  of  which  shall  be  distributed  as  are  the 
other  reports  transmitted  to  Congress.  This  report  shall  contain 
such  information  and  data  collected  by  the  Commission  as  may 
be  considered  of  value  in  the  determination  of  questions  con- 
nected with  the  regulation  of  commerce,  together  with  such  rec- 
ommendations as  to  additional  legislation  relating  thereto  as  the 
Commission  may  deem  necessary ;  and  the  names  and  compen- 
sation of  the  persons  employed  by  said  Commission. 

Section  twenty-one  as  amended  by  act  March  2,  1889. 

The  original  act  said  "reports  issued  from  the  Interior  De- 
partment," where  the  present  act  says  "reports  transmitted  to 
Congress."  The  amendment  also  added  the  words,  "and  the 
names  and  compensation  of  the  persons  employed  by  said  Com- 
mission." 

Cited  in  discussing  the  scope  of  the  powers  of  the  Commission. 
United  States  v.  Lake  S.  &  M.  S.  Ry.  Co.,  197  U.  S.  536,  49  L. 
Ed.  870,  25  Sup.  Ct.  538;  Harriman  v.  Lit.  Com.  Com.,  211  U. 
S.  407,  420,  421,  53  L.  Ed.  253,  29  Sup.  Ct.  115. 

§  442.  Circumstances  under  Which  Reduced  or  Free 
Fares  and  Rates  May  Be  Given. — That  nothing  in  this  act 
shall  prevent  the  carriage,  storage,  or  handling  of  property  free 
or  at  reduced  rates  for  the  United  States,  state,  or  municipal  gov- 
ernments, or  for  charitable  purposes,  or  to  and  from  fairs  and 
expositions  for  exhibition  thereat  (or  the  free  carriage  of  desti- 
tute and  homeless  persons  transported  by  charitable  societies,  and 
the  necessary  agents  employed  in  such  transportation),  or  the  is- 
suance of  mileage,  excursion,  or  commutation  passenger  tickets ; 
nothing  in  this  act  shall  be  construed  to  prohibit  any  common 
carrier  from  giving  reduced  rates  to  ministers  of  religion  (or  to 
municipal  governments  for  the  transportation  of  indigent  per- 
sons, or  to  the  inmates  of  the  National  Llomes  or  State  Homes 
for  Disabled  Volunteer  Soldiers,  and  of  Soldiers'  and  Sailors' 
Orphan  Homes,  including  those  about  to  enter  and  those  return- 
ing home  after  discharge,  under  arrangements  with  the  boards 


632  Acts   Regulating   Commerce,  [§  442. 

of  managers  of  said  home)  ;  nothing  in  this  act  shall  be  construed 
to  prevent  railroads  from  giving  free  carriage  to  their  own  offi- 
cers and  employees,  or  to  prevent  the  principal  officers  of  any 
railroad  company  or  companies  from  exchanging  passes  or  tick- 
ets with  other  railroad  companies  for  their  officers  and  employ- 
ees. 

Part  of  section  twenty-two  as  amended  by  act  March  2,  1889. 

The  original  act  used  the  words  "apply  to"  in  the  first  line 
where  the  amended  act  uses  the  word  "prevent."  The  words  in 
brackets  in  the  above  copied  section  were  added  by  the  act  of 
March  2,  1889. 

Individuals  desiring  to  make  proposals  to  sell  the  government 
Indian  supplies  may  receive  special  rates.     Re  Indian  Supplies, 

1  I.  C.  C.  R.  22.  Pass  issued  to  induce  the  holder  to  throw  busi- 
ness to  carrier  illegal.     Slater  v.  N.  Pac.  R.  Co.,  2  I.  C.  C.  359, 

2  I.  C.  R.  243.  Men  eminent  for  public  service  not  on  that 
account  alone  entitled  to  use  passes.  Re  Carriage  of  Persons 
Free  or  at  Reduced  Rates,  5  I.  C.  C.  69,  3  I.  C.  R.  717.  Illegal 
to  grant  pass  to  members  of  city  council.  Harvey  v.  L.  &  N. 
R.  Co.,  5  I.  C.  C.  153,  3  I.  C.  R.  793.  Land  and  immigration 
agents  not  entitled  to  free  pass.  Re  Complaint  of  Illinois  Cen- 
tral R.  Co.,  12  I.  C.  C.  7.     Rule  announced  as  to  employees  of 

telegraph  companies.     Re  Railroad  Telegraph  Contracts,  12 

I.  C.  C.  10.  Caretakers  of  newspapers  not  excepted  by  section. 
Re  Free  Transportation  of  Newspaper  Employees,  12  I.  C.  C. 
15.  Nor  are  employees  of  baggage  express  companies.  Re 
Right  of  Railroad  Companies  to  Exchange  Transportation  with 
Transfer  Companies,  12  I.  C.  C.  39.  Section  cited.  Export 
Shipping  Co.  V.  Wabash  R.  Co.,  14  I.  C.  C.  437,  455.  Exception 
does  not  apply  to  families  of  officers  or  employees.  Ex  parte 
Koehler,  31  Fed.  315,  12  Sawy.  446.  Section  as  originally  en- 
acted by  making  certain  exceptions  was  not  intended  to  pro- 
hibit party  rate  tickets.  Int.  Com.  Com.  v.  B.  &  O.  R.  Co.,  43 
Fed.  Z7,  45,  3  I.  C.  C.  192.  Affirmed,  with  same  holding,  145  U. 
S.  263,  36  L.  Ed.  699,  12  Sup.  Ct.  844.  To  issue  pass  to  person 
not  excepted  by  section  is  illegal  discrimination.  Re  Charge  to 
Grand  Jury,  66  Fed.  146.  Exceptions  do  not  apply  to  officers 
of  express  companies.  United  States  v.  Wells  Fargo  Express 
Co.,  161  Fed.  606,  609.  Affirmed.  American  Ex.  Co.  and  other 
Express  Co.'s  v.  United  States,  212  U.  S.  522,  53  L.  Ed.  635,  29 
Sup.  Ct.  315.     Publishers  can  not  pay  for  transportation  by  ad- 


§  443.]  Annotated.  633 

vertising.  United  States  v.  Chicago,  I.  &  L.  Ry.  Co.,  163  Fed. 
114.  Does  not  prohibit  free  transportation  of  employees  of  the 
Federal  Government  engaged  in  the  postal  service.  18  Opin. 
Atty.-Gen.  587. 

Notes  of  Decisions  Rendered  Since  1909. 

See  notes  Section  342.  Supra. 

Carriers  may  give  reduced  rates  to  municipal  authorities,  but 
what  they  may  do  is  a  very  different  thing  from  what  they  may 
be  required  to  do.  Metropolitan  Paving  Brick  Co.  v.  A.  &  R.  R. 
Co.,  17  I.  C.  C.  197,  204';  Field  v.  S.  R.  Co.,  13  I.  C.  C.  298 ;  Car- 
negie Board  of  Trade  v.  P.  R.  Co.,  28  I.  C.  C.  122,  129;  Dairy- 
man's Supply  Co.  V.  P.  R.  Co.,  28  I.  C.  C.  406,  408.  Excursion 
tickets  not  to  be  issued  as  to  abuse  the  privilege.  Weber  Club 
Intermountain  Fair  Ass'n  v.  O.  S.  L.  R.  Co.,  17  I.  C.  C.  212. 
Mileage  books  voluntarily  issued  are  subject  to  the  general  pro- 
visions of  the  statute.  Commutation  Rate  case,  21  I.  C.  C.  428, 
442,  citing  cases.  Free  pass  situation  discussed.  Colorado  Free 
Pass  Investigation,  26  I.  C.  C.  491.  A  carrier  subject  to  the  act 
may  exchange  transportation  with  other  common  carriers  not 
subject  to  the  act.  U.  S.  v.  Erie  R.  Co.,  213  Fed.  391.  "Mileage 
books"  discussed  and  cases  cited.  Re  Mileage  Book,  28  I.  C. 
C.  318;  Re  Mileage,  Excursion  and  Commutation  Tickets,  23  I. 
C.  C.  95.  The  Supreme  Court  of  Georgia  held  that  carriers  hav- 
ing issued  mileage  books,  such  books  could  be  regulated  by  the 
Railroad  Commission  of  the  state,  and  that  then  Commission 
could  require  the  carrier  to  accept  the  mileage  on  trains  without 
demanding  an  exchange  for  a  ticket.  Railroad  Commission  of 
Ga.  V.  L.  &  N.  R.  Co.,  140  Ga.  817,  80  S.  E.  327,  cited  in  Wadley 

So.  V.  Georgia,  235  U.  S.  651,  59  L.  Ed. ,  35  Sup.  Ct.  214.  See 

Contra  Lake  S.  &  M.  S.  Ry.  Co.  v.  Smith,  173  U.  S.  684,  43  L. 
Ed.  858,  19  Sup.  Ct.  565 ;  State  v.  Boneval,  128  La.  702,  55  So. 
569,  Ann.  Cases  1912C,  837 ;  Virginia-Commonwealth  ex  rel.  v. 
A.  C.  L.,  106  Va.  61,  55  S.  E.  572,  7  L.  R.  A.  (N.  S.)  1086,  117 
Am.  St.  Rep.  983,  and  North  Dakota— State  v.  Great  N.  Ry.  Co., 
17  N.  D.  370,  116  N.  W.  89. 

§  443.  Existing  Remedies  Not  Abridged  or  Altered. 
Pending  Litigation  Not  Affected. — And  nothing  in  this  act 
contained  shall  in  any  way  abridge  or  alter  the  remedies  now  exist- 
ing at  common  law  or  by  statute,  but  the  provisions  of  this  act 


634  Acts   Regulating   Commerce,  [§  443. 

are  in  addition  to  such  remedies :  Provided,  That  no  pending 
litigation  shall  in  any  way  be  affected  by  this  act. 

Part  of  section  twenty-two  as  originally  enacted. 

Right  of  courts  to  enjoin  an  illegal  advance  in  rates  before 
they  become  effective  not  supplanted  by  special  remedies  granted 
by  the  act  to  regulate  commerce.  Tift  v.  So.  Ry.  Co.,  123  Fed. 
789,  138  Fed.  753.  Affirmed.  So.  Ry.  Co.  v.  Tift,  148  Fed.  1021, 
206  U.  S.  428,  51  L.  Ed.  1124,  27  Sup.  Ct.  709;.Jewett  Bros.  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  156  Fed.  160;  Kalispell  Lumber  Co. 
V.  Great  N.  R.  Co.,  157  Fed.  845.  Reversed  because  rate  had  be- 
come effective  before  injunction  applied  for.  165  Fed.  25,  91 
C.  C.  A.  63.  Riser  v.  Cent,  of  Ga.  Ry.  Co.,  158  Fed.  193; 
Macon  Grocery  Co.  v.  Atlantic  C.  L.  R.  Co.,  163  Fed.  736.  Re- 
versed. Atlantic  C.  L.  R.  Co.  v.  Macon  Grocery  Co.,  166  Fed. 
206,  92  C.  C.  A.  114.  Nor.  Pac.  Ry.  Co.  v.  Pacific  Coast  Lumber 
Mfg.  Asso.,  165  Fed.  1.  Union  Pac.  R.  Co.  v.  Oregon  &  W.  L. 
Mfg.  Asso..  165  Fed.  13,  91  C.  C.  A.  51.  Contra  if  the  rates  have 
becomes  eft'ective.  Potlatch  Lumber  Co.  v.  Spokane  Falls  &  N. 
Ry.  Co.,  157  Fed.  588;  Great  N.  Ry.  Co.  v.  Kalispell  Lumber 
Co.,  165  Fed.  25,  91  C.  C.  A.  63.  Circuit  courts  can  not  enjoin 
the  taking  eft'ect  of  an  illegal  advance  prior  to  action  by  the  In- 
terstate Commerce  Commission.  Atlantic  Coast  L.  R.  Co.  v. 
Macon  Grocery  Co.,  166  Fed.  206.  While  a  court  has  jurisdic- 
tion to  enjoin  an  illegal  advance  before  it  becomes  effective,  it 
can  not  do  so  merely  as  ancillary  to  a  complaint  before  the 
Commission.  Jewett  Bros.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  156 
Fed.  160.  The  cases  holding  that  injunctions  may  be  granted, 
supra,  also  hold  that  jurisdiction  in  the  federal  courts  being  ex- 
clusive, suit  may  be  brought  wherever  the  defendant  can  be  found 
and  served.  In  Sunderland  Bros.  v.  Chicago,  R.  I.  &  P.  R.  Co., 
158  Fed.  877,  it  was  held  that  suit  could  only  be  brought  in  the 
district  of  the  residence  of  either  the  complainant  or  the  defend- 
ant. Notwithstanding  this  section,  courts  have  no  jurisdiction 
to  award  damages  for  excessive  rates  prior  to  a  determination 
by  the  Commission  that  such  rates  are  excessive.  Tex.  &  Pac. 
Ry.  Co.  V.  Abilene  Cotton  Oil  Co.,  204  U.  S.  426,  446,  51  L.  Ed. 
553,  561,  27  Sup.  Ct.  350.  But  this  decision  does  not  mean  that  an 
illegal  advance  may  not  be  enjoined.  So.  Ry.  Co.  v.  Tift,  206 
U.  S.  428,  51  L.  Ed.  112.  27  Sup.  Ct.  709.  Same  effect  as  Abilene 
case,  supra.    Gatton  v.  Chicago,  etc.,  R.  Co.,  95  Iowa  113. 


I 


§  444.]  Annotated.  635 

Notes  of  Decisions  Rendered  Since  1909. 

This  Section  must  be  construed  with  the  whole  act,  which  act 
£0  construed  gives  the  Commission  jurisdiction  to  determine 
the  questions  of  the  lawfulness  and  unlawfulness  of  rates.  Mitch- 
ell Coal  &  Coke  Co.  v.  P.  R.  Co.,  230  U.  S.  247,  S7  L.  Ed.  1472, 
Z?)  Sup.  Ct.  916;  same  styled  case  below,  181  Fed.  403,  183  Fed. 
908 ;  Morrisdale  Coal  Co.  v.  P.  R.  Co.,  230  U.  S.  304,  57  L.  Ed. 
1474,  2,2>  Sup.  Ct.  939,  affirming  same  styled  case,  183  Fed.  929,  106 
C.  C.  A.  269.  But  where  an  act  is  required  by  law  and  the  Com- 
mission has  no  duty  to  perform  the  courts  have  jurisdiction. 
Perin.  R.  Co.  v.  International  Coal  Co.,  230  U.  S.  184,  57  L.  Ed. 
1446,  ZZ  Sup.  Ct.  983 ;  So.  Ex.  Co.  v.  Long,  202  Fed.  462,  120  C. 
C.  A.  568,  reversing  Long  v.  So.  Ex.  Co.,  201  Fed.  441.  The 
courts  may  not  in  the  first  instance  determine  whether  a  rate 
is  inherently  reasonable.  A.  T.  &  S.  F.  Ry.  Co.  v.  U.  S.,  203  Fed. 
56,  Op.  Com.  Ct.  No.  61,  p.  537;  Atl.  Coast  Line  R.  Co.  v.  Int. 
Com.  Com.,  194  Fed.  449;  L.  &  N.  Ry.  Co.  v.  Int.  Com.  Com., 
195  Fed.  541 ;  Int.  Com.  Com.  &  U.  S.  v.  L.  &  N.  Ry.  Co.,  227 
U.  S.  88,  33  Sup.  Ct.  185,  57  L.  Ed.  431 ;  Robinson  v.  B.  &  O. 
R.  Co.,  222  U.  S.  506,  56  L.  Ed.  288,  32  Sup.  Ct.  114. 

§  444.  Interchang-eable  Mileage  Tickets,  How  Issued. — 
Provided  further,  that  nothing  in  this  act  shall  prevent  the  is- 
suance of  joint  interchangeable  five-thousand-mile  tickets,  with 
special  privileges  as  to  the  amount  of  free  baggage  that  may  be  car- 
ried under  mileage  tickets  of  one  thousand  or  more  miles.  But 
before  any  common  carrier,  subject  to  the  provision  of  this  act, 
shall  issue  any  such  joint  interchangeable  mileage  tickets  with 
special  privileges,  as  aforesaid,  it  shall  file  with  the  Interstate 
Commerce  Commission  copies  of  the  joint  tarififs  of  rates,  fares, 
or  charges  on  which  such  joint  interchangeable  mileage  tickets 
are  to  be  based,  together  with  specifications  of  the  amount  of  free 
baggage  permitted  to  be  carried  under  such  tickets,  in  the  same 
manner  as  common  carriers  are  required  to  do  with  regard  to 
other  joint  rates  by  section  six  of  this  act ;  and  all  the  pro- 
visions of  said  section  six  relating  to  joint  rates,  fares,  and 
charges  shall  be  observed  by  said  common  carriers  and  enforced 
by  the  Interstate  Commerce  Commission  as  fully  with  regard  to 
such  joint  interchangeable  mileage  tickets  as  with  regard  to 
other  joint  rates,  fares,  and  charges  referred  to  in  said  section 
six.  It  shall  be  unlawful  for  any  common  carrier  that  has  issued 
or  authorized  to  be  issued  any  such  joint  interchangeable  mileage 


636  Acts   Regulating   Commerce,  [§  445. 

tickets  to  demand,  collect,  or  receive  from  any  person  or  persons 
a  greater  or  less  compensation  for  transportation  of  persons  or 
baggage  under  such  joint  interchangeable  mileage  tickets  than 
that  required  by  the  rate,  fare,  or  charge  specified  in  the  copies 
of  the  joint  tariff  of  rates,  fares,  or  charges  filed  with  the  Com- 
mission in  force  at  the  time.  The  provisions  of  section  ten  of 
this  act  shall  apply  to  any  violation  of  the  requirements  of  this 
proviso. 

Proviso  to  section  twenty-two  added  by  the  act  of  February 
8,  1895. 

Proviso  applies  only  to  the  issuance  of  such  tickets  and  the 
terms,  conditions  and  the  persons  to  whom  issued  must  be  with- 
out discrimination.  Larrison  v.  Chicago  &  G.  T.  R.  Co.,  1  I. 
C.  C.  147,  1  I.  C.  R.  369.  Excursion  and  commutation  tickets 
are  not  the  basis  for  fixing  price  of  mileage  tickets.  Associated 
Wholesale  Grocers  of  St.  Louis  v.  Mo.  Pac.  R.  Co.,  1  I.  C.  C. 
156,  1  I.  C.  R.  393.  Mileage,  excursion  or  commutation  tickets 
must  be  oft'ered  impartially.  Re  Passenger  Tariffs,  2  I.  C.  C. 
649,  2  I.  C.  R.  445.  Party  rates  should  not  be  lower  than  con- 
temporaneous single  tickets.     Pittsburg,  C.  &  St.  L.  R.  Co.  v. 

B.  &  O.  R.  Co.,  3  I.  C.  C.  465,  2  I.  C.  R.  729.  Order  not  en- 
forced. Int.  Com.  Com.  v.  B.  &  O.  R.  Co.,  43  Fed.  Z7,  145  U.  S. 
263,  36  L.  Ed.  699,  12  Sup.  Ct.  844,  4  I.  C.  R.  92.  Provision 
merely  permissive  and  gives  the  Commission  no  power  to  compel 
the  issuance  of  mileage  tickets.     Sprigg  v.  B.  &  O.  R.  Co.,  8  I. 

C.  C.  443,  450.  See  the  able  and  cogent  dissenting  opinion  of 
Mr.  Commissioner  Clements,  457  et  seq.  See  Re  Party  Rate 
Tickets,  12  I.  C.  C.  95.  Export  Shipping  Co.  v.  Wabash  R. 
Co.,  14  I.  C.  C.  437,  455.    Tariff  Circular  No.  18-A. 

Motes  of  Decisions  Rendered  Sirce  1909. 

See  notes  to  Sec.  442  supra. 

§  445.  Discrimination  May  Be  Prevented  by  Writ  of 
Mandamus,  Remedy  Cumulative. — That  the  circuit  and  dis- 
trict courts  of  the  United  States  shall  have  jurisdiction  upon 
the  relation  of  any  person  or  persons,  firm,  or  corporation,  alleg- 
ing such  violation  by  a  common  carrier,  of  any  of  the  provisions 
of  the  act  to  which  this  is  a  supplement  and  all  acts  amendatory 
thereof,  as  prevents  the  relator  from  having  interstate  traffic 
moved  by  said  common  carrier  at  the  same  rates  as  are  charged, 
or  upon  terms  or  conditions  as  favorable  as  those  given  by  said 


I 


§  445.]  Annotated.  637 

common  carrier  for  like  traffic  under  similar  conditions  to  any 
other  shipper,  to  issue  a  writ  or  writs  of  mandamus  against  said 
common  carrier,  commanding  such  common  carrier  to  move  and 
transport  the  traffic,  or  to  furnish  cars  or  other  facilities  for 
transportation  for  the  party  applying  for  the  writ :  Provided, 
That  if  any  question  of  fact  as  to  the  proper  compensation  to  the 
common  carrier  for  the  service  to  be  enforced  by  the  writ  is 
raised  by  the  pleadings,  the  writ  of  peremptory  mandamus  may 
issue,  notwithstanding  such  question  of  fact  is  undetermined,' 
upon  such  terms  as  to  security,- payment  of  money  into  the  court, 
or  otherwise,  as  the  court  may  think  proper,  pending  the  deter- 
mination of  the  question  of  fact :  Provided,  That  the  remedy 
hereby  given  by  writ  of  mandamus  shall  be  cumulative,  and 
shall  not  be  held  to  exclude  or  interfere  with  other  remedies  pro- 
vided by  this  act  or  the  act  to  which  it  is  a  supplement. 

New  section,  section  twenty-three,  added  by  act  March  2, 
1889,  and  being  section  ten  of  that  act. 

Cited  in  support  of  the  holding  that  a  carrier  can  not  dis- 
criminate in  favor  of  industries  on  its  own  line  against  indus- 
tries on  a  connecting  line.  Standard  Lime  &  Stone  Co.  v.  Cum- 
berland V.  R.  Co.,  15  I.  C.  C.  620.  Remedy  is  given  only  for 
unjust  discrimination.  United  States  v.  N.  &  W.  Ry.  Co.,  109 
Fed.  831.  Second  suit  abated  pending  appeal  of  the  first  one. 
United  States  v.  Norfolk  &  W.  Ry.  Co.,  114  Fed.  682.  Suit 
brought  under  authority  of  section  and  amendment  of  Feb.  8, 
1895.  United  States  v.  West  Virginia  N.  R.  Co.,  125  Fed.  252. 
Affirmed,  holding  that  writ  may  run  against  individuals.  West 
Virginia  N.  R.  Co.  v.  United  States,  134  Fed.  198,  67  C.  C.  A. 
220.  Writ  will  not  issue  to  enforce  a  private  contract  for  car 
distribution.  United  States  v.  Norfolk  &  W.  R.  Co.,  138  Fed. 
849.  Reversed,  holding  that  a  right  exists  for  an  equal  dis- 
tribution of  cars,  and  a  contract  therefor  is  in  aid  of  the  act  and 
may  be  enforced.  Same  style  case,  143  Fed.  266,  74  C.  C.  A. 
404.  Mandamus  will  not  issue  in  suit  by  United  States  except 
under  authority  of  a  statute.  United  States  ex  rel.  Knapp  et  al. 
Commissioners  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  197  U.  S.  536, 
49  L.  Ed.  870,  25  Sup.  Ct.  538.  Act  cumulative  and  not  ex- 
clusive of  preexisting  remedies.  Tift  v.  So.  Ry.  Co.,  123  Fed. 
789,  138  Fed.  753.  Affirmed.  So.  Ry.  Co.  v.  Tift,  148  Fed.  1021, 
206  U.  S.  428,  41  L.  Ed.  1124,  27  Sup.  Ct.  709.  Car  distribution 
determined   in   suit  under  section.     United   States   v.   B.   &   O. 


638  Acts   Regulating   Commerce,  [§  446. 

R.  Co.,  154  Fed.  108.  Sustained  in  so  far  as  relief  granted  re- 
lator and  reversed  because  other  relief  not  granted.  United 
States  V.  B.  &  O.  R.  Co.,  165  Fed.  113,  91  C.  C.  A.  147.  This 
section  does  not  prevent  an  individual  from  applying  to  the 
Commission,  and  this  even  when  another  operator  has  filed  a 
complaint  for  mandamus.  Alerchants  Coal  Co.  v.  Fairmont  Coal 
Co.,  160  Fed.  769,  88  C.  C.  A.  23.  Appealed  to  Supreme  Court. 
163  Fed.  1021,  1022.  Injunction  will  not  issue  to  prevent  con- 
'  sidering  private  cars  in  making  distribution  of  cars  to  coal  com- 
panies. Majestic  Coal  &  Coke  Co.  v.  111.  Cent.  R.  Co.,  162  Fed. 
810.  Private  cars  should  be  charged  against  their  owners  in 
making  distribution.  United  States  ex  rel.  Pitcairn  Coal  Co.  v. 
B.  &  O.  R.  Co.,  165  Fed.  113. 

Notes  of  Decisions  Rendered  Since  1909. 

Right  stated  and  case  brought  under  this  Section.  B.  &  O. 
R.  Co.  V.  United  States  ex  rel.  Pitcairn  Coal  Co.,  215  U.  S.  481, 
54  L.  Ed.  292,  30  Sup.  Ct.  164.  Reversing  U.  S.  ex  rel.  Pit- 
cairn Coal  Co.  V.  B.  &  O.  R.  Co.,  165  Fed.  113,  91  C.  C.  A.  147; 
Hillsdale  Coal  &  Coke  Co.  v.  P.  R.  R.  Co.,  19  I.  C.  C.  356,  380. 
See  also  notes  Section  20,  Sec.  437  supra. 

§  446.  Number,  Terms,  Qualification,  Salary  and  Ap- 
pointment of  Commissioners. — That  the  Interstate  Commerce 
Commission  is  hereby  enlarged  so  as  to  consist  of  seven  mem- 
bers with  terms  of  seven  years,  and  each  shall  receive  ten  thou- 
sand dollars  compensation  annually.  The  qualifications  of  the  com- 
missioners and  the  manner  of  the  payment  of  their  salaries  shall 
be  as  already  provided  by  law.  Such  enlargement  of  the  Commis- 
sion shall  be  accomplished  through  appointment  by  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate,  of  two  addi- 
tional Interstate  Commerce  Commissioners,  one  for  a  term  expir- 
ing December  thirty-first,  nineteen  hundred  and  eleven,  one  for  a 
term  expiring  December  thirty-first,  nineteen  hundred  and  twelve. 
The  terms  of  the  present  commissioners,  or  of  any  successor 
appointed  to  fill  a  vacancy  caused  by  the  death  or  resignation  of 
any  of  the  present  commissioners,  shall  expire  as  heretofore 
provided  by  law.  Their  successors  and  the  successors  of  the  ad- 
ditional commissioners  herein  provided  for  shall  be  appointed 
for  the  full  term  of  seven  years,  except  that  any  person  ap- 
pointed to  fill  a  vacancy  shall  be  appointed  only  for  the  unex- 
pired term  of  the  commissioner  whom  he  shall  succeed.     Not 


I 


§  447.]  Annotated.  639 

more  than  four  commissioners  shall  be  appointed  from  the  same 
political  party. 

Section  twenty-four  added  by  the  act  June  29,  1906. 

See  Sec.   11  of  act,  Sec.  388  supra. 

§  447.  Existing-  Laws  as  to  Obtaining  Testimony  Appli- 
cable to  Act. — That  all  existing  laws  relating  to  the  attendance 
of  witnesses  and  the  production  of  evidence  and  the  compelling 
of  testimony  under  the  act  to  regulate  commerce  and  all  acts 
amendatory  thereof  shall  apply  to  any  and  all  proceedings  and 
hearings  under  this  act. 

Section  nine  of  the  act  of  June  29,  1906. 

Cited  in  discussion  of  the  power  of  the  Commission  to  make 
investigations.  Harriman  v.  Int.  Com.  Com.,  211  U.  S.  407,  422, 
53  L.  Ed.  253,  29  Sup.  Ct.  115. 

§  448.  Repealing  Conflicting  Laws  Not  to  Affect  Pend- 
ing Suits. — That  all  laws  and  parts  of  laws  in  conflict  with  the 
provisions  of  this  act  are  hereby  repealed ;  but  the  amendments 
herein  provided  for  shall  not  affect  causes  now  pending  in  courts 
of  the  United  States,  but  such  causes  shall  be  prosecuted  to  a 
conclusion  in  the  manner  heretofore  provided  by  law. 

Section  ten  of  the  act  June  29,  1906. 

Does  not  prevent  the  indictment  if  those  violating  the  old 
law.  United  States  v.  Standard  Oil  Co.,  148  Fed.  719,  155  Fed. 
305.  Reversed  on  other  grounds.  164  Fed  376,  90  C.  C.  A.  364; 
United  States  v.  Chicago,  St.  P.  &  M.  Ry.  Co.,  same  v.  G.  N.  Ry. 
Co.,  151  Fed.  84.  Affirmed,  same  ruling.  Great  N.  Ry.  Co. 
V.  United  States,  208  U.  S.  452,  52  L.  Ed.  567,  28  Sup.  Ct.  313. 

Applies  to  rebate  cases  and  an  indictment  good  under  the  Elk- 
ins  law  prior  to  its  amendment  remains  good  since.  United  States 
V.  Delaware  L.  &  \\\  R.  Co.,  152  Fed.  269;  United  States  v. 
New  York  C.  &  H.  R.  R.  Co.,  153  Fed.  630;  Great  N.  Ry.  Co.  v. 
United  States,  155  Fed.  945,  84  C.  C.  A.  93.  Affirmed.  208  U. 
S.  452,  52  L.  Ed.  567,  28  Sup.  Ct.  313;  United  States  v.  Great 
N.  R.  Co.,  157  Fed.  288.  290. 

§  449.  Time  of  Taking  Effect  of  Act.— That  this  act  shall 
take  effect  and  be  in  force  from  and  after  its  passage. 

Joint  resolution  of  June  30,  1906,  provides:  That  the  act 
entitled  "An  act  to  amend  an  act  entitled  'An  act  to  regulate 
commerce,'  approved  February  4,  1887,  and  all  the  acts  amenda- 
tory thereof,  and  to  enlarge  the  powers  of  the  Interstate  Com- 


640  Acts   Regulatinx   Commerce;,  [§  450. 

merce  Commission,  shall  take  effect  and  be  in  force  sixty  days 
after  its  approval  by  the  President  of  the  United  States." 

Section  eleven  of  the  act  of  June  29,  1906,  and  the  joint  reso- 
lution of  June  '30,  1906. 

The  effective  date  of  the  act  of  June  29,  1906,  was  August  28, 
1906.  Nicola,  Stone  &  Meyers  Co.  v.  L.  &  X.  R.  Co.,  14  I.  C.  C. 
199,  206. 

Joint  resolution  ineff'ective  to  prevent  law  becoming  in  force 
on  the  date  of  its  approval  by  the  President.  United  States  v. 
Standard  Oil  Co.,  148  Fed.  719.  Reversed  on  other  grounds. 
Standard  Oil  Co.  v.  United  States,  164  Fed.  2,76,  90  C.  C.  A.  364. 

Section  cited.  Philips  v.  G.  T.  W.  Ry.  Co.,  236  U.  S.  662,  59 
L.  Ed.  —   35  Sup.  Ct.  444. 

§  450.  Carriers  Must  Designate  Agents  in  Washington. 
— It  shall  be  the  duty  of  every  common  carrier  subject  to  the 
provisions  of  this  act,  within  sixty  days  after  the  taking  effect 
of  this  act,  to  designate  in  writing  an  agent  in  the  city  of  Wash- 
ington, District  of  Columbia,  upon  whom  service  of  all  notices 
and  processes  may  be  made  for  and  on  behalf  of  said  common 
carrier  in  any  proceeding  or  suit  pending  before  the  Interstate 
Commerce  Commission  or  before  said  commerce  court, 
and  to  file  such  designation  in  the  office  of  the  secretary  of  the 
Interstate  Commerce  Commission,  which  designation  may  from 
time  to  time  be  changed  by  like  writing  similarly  filed  ;  and  there- 
upon service  of  all  notices  and  processes  mav  be  made  upon  such 
common  carrier  by  leaving  a  copy  thereof  with  such  designated 
agent  at  his  office  or  usual  place  of  residence  in  the  city  of 
Washington,  with  like  eff'ect  as  if  made  personally  upon  such 
common  carrier  by  leaving  a  copy  thereof  with  such  designated 
agent,  service  of  any  notice  or  other  process  in  any  proceeding 
before  said  Interstate  Commerce  Commission  or  commerce 
court  may  be  made  by  posting  such  notice  or  process  in  the  of- 
fice of  the  secretary  of  the  Interstate  Commerce  Commission. 

New  Section  added  by  amendment  of  June  18,  1910. 

§  451.  Pending  Cases  Not  Affected. — That  nothing  in  this 
act  contained  shall  undo  or  impair  any  proceedings  heretofore 
taken  by  or  before  the  Interstate  Commerce  Commission  or  any 
of  the  acts  of  said  Commission  :  and  in  any  cases,  proceedings, 
or  matters  now  pending  before  it,  the  Commission  may  exercise 
any  of  the  powers  hereby  conferred  upon  it,  as  would  be  proper 
in  cases,  proceedings,  or  matters  hereafter  initiated  and  nothing 


§  452.]  Annotated.  .  64.1 

in  this  act  contained  shall  operate  to  release  or  affect  any  obliga- 
tion, liability,  penalty,  or  forfeiture  heretofore  existing  against 
or  incurred  by  any  person,  corporation  or  association. 

Section  15  act  June  18,  1910. 

§  452.  Commission  to  Investigate  Questions  Pertaining 
to  Issuance  of  Stocks  and  Bonds. — That  the  President  is 
hereby  authorized  to  appoint  a  Commission  to  investigate  ques- 
tions pertaining  to  the  issuance  of  stocks  and  bonds  by  railroad 
corporations,  subject  to  the  provisions  of  the  act  to  regulate  com- 
merce, and  the  power  of  Congress  to  regulate  or  aft'ect  the  same, 
and  to  fix  the  compensation  of  the  members  of  such  Commission. 
Said  Commission  shall  be  and  is  hereby  authorized  to  employ 
experts  to  aid  in  the  work  of  inquiry  and  examination,  and  such 
clerks,  stenographers,  and  other  assistants  as  may  be  necessary, 
which  employees  shall  be  paid  such  compensation  as  the  Com- 
mission may  deem  just  and  reasonable,  upon  a  certificate  to  be 
issued  by  the  chairman  of  the  Commission.  The  several  depart- 
ments and  bureaus  of  the  Government  shall  detail  from  time  to 
time  such  officials  and  employees  and  furnish  such  information 
to  the  Commission  as  may  be  directed  by  the  President.  For  the 
purpose  of  its  investigations  the  Commission  shall  be  authorized 
to  incur  and  have  paid  upon  the  certificate  of  its  chairman  such 
expenses  as  the  Commission  shall  deem  necessary :  Provided, 
hozvever,  That  the  total  expenses  authorized  or  incurred  under 
the  provisions  of  this  section  for  compensation,  employees,  or 
otherwise,  shall  not  exceed  the  sum  of  twenty-five  thousand 
dollars. 

Section  16  of  the  Act  of  June  18,  1910. 

§  453.  Injunctions  against  Operation  of  State  Statutes. 
— That  no  interlocutory  injunction  suspending  or  restraining  the 
enforcement,  operation,  or  execution  of  any  statute  of  a  state  "Or 
in  the  enforcement  or  execution  of  an  order  made  by  an  admin- 
istrative board  or  commission  acting  under  and  pursuant  to  the 
statutes  of  such  state."  By  restraining  the  action  of  any  officer 
of.  such  state  in  the  enforcement  or  execution  of  such  statute 
shall  be  issued  or  granted  by  any  justice  of  the  supreme  court, 
or  by  any  circuit  court  of  the  United  States,  or  by  any  judge 
thereof,  or  by  any  district  judge  acting  as  circuit  judge, 
upon  the  ground  of  the  unconstitutionality  of  such  stat- 
ute,   unless  the    application    for  the   same    shall  be    presented 

—21 


642  Acts  Regulating  Commerce,  [§  453. 

to  a  justice  of  the  Supreme  Court  of  the  United  States, 
or  to  a  circuit  judge,  or  to  a  district  judge  acting  as  circuit  judge, 
and  shall  be  heard  and  determined  by  three  judges,  of  whom  at 
least  one  shall  be  a  justice  of  the  Supreme  Court  of  the  United 
States  or  a  circuit  judge,  and  the  other  two  may  be  either  circuit 
or  district  judges,  and  unless  a  majority  of  said  three  judges 
shall  concur  in  granting  such  application.  Whenever  such  ap- 
plication as  aforesaid  is  presented  to  a  justice  of  the  Supreme 
Court  of  the  United  States,  or  to  a  judge,  he  shall  immediately 
call  to  his  assistance  to  hear  and  determine  the  application  two 
other  judges:  Provided,  hozvever,  That  one  of  such  three  judges 
shall  be  a  justice  of  the  Supreme  Court  of  the  United  States  or 
a  circuit  judge.  Said  application  shall  not  be  heard  or  deter- 
mined before  at  least  five  days'  notice  of  the  hearing  has  been 
given  to  the  governor  and  to  the  Attorney-General  of  the  state, 
and  to  such  other  persons  as  may  be  defendants  in  the  suit :  Pro- 
vided, That  if  of  opinion  that  irreparable  loss  or  damages  would 
result  to  the  complainant  unless  a  temporary  restraining  order 
is  granted,  any  justice  of  the  Supreme  Court  of  the  United  States, 
or  any  circuit  or  district  judge,  may  grant  such  temporary  re- 
straining order  at  any  time  before  such  hearing  and  determina- 
tion of  the  application  for  an  interlocutory  injunction,  but  such 
temporary  restraining  order  shall  only  remain  in  force  until  the 
hearing  and  determination  of  the  application  for  an  interlocutory 
injunction  upon  notice  as  aforesaid.  The  hearing  upon  such 
application  for  an  interlocutory  injunction  shall  be  given  prec- 
edence and  shall  be  in  every  way  expedited  and  be  assigned  for 
a  hearing  at  the  earliest  practicable  day  after  the  expiration  of 
the  notice  hereinbefore  provided  for.  An  appeal  may  be  taken 
directly  to  the  Supreme  Court  of  the  United  States  from  the 
order  granting  or  denying,  after  notice  and  hearing,  an  interloc- 
utory injunction  in  such  case. 

Section  266  of  the  Judicial  Code,  a  new  provision,  being  Sec. 
17  of  the  act  of  June  18,  1910.  Ch.  309,  36  Stat.  L.  557. 
Amended  by  act  March  4,  1913,  Ch.  160,  37  Stat.  1013,  which 
amendment  added  after  the  word  "statute"  in  the  first  sentence 
of  the  section ;  the  words  "Or  in  the  enforcement  or  execution 
of  an  order  made  by  an  administrative  board  or  commission  act- 
ing under  and  pursuant  to  the  statutes  of  such  state."  The  pur- 
pose of  the  statute  stated.    Chicago,  B.  &  O.  R.  Co.  v.  Oglesby, 


§  454.]  Annotated.  643 

198  Fed.  153.  See  Ex  Parte  Yung,  209  U.  S.  123,  52  L.  Ed.  714, 
28  Sup.  Ct.  441,  13  L.  R.  A.  (N.  S.)  932. 

Held  that  the  statute  had  no  application  to  a  city  ordinance. 
Cumberland  Tel.  &  Tel.  Co.  v.  Memphis,  198  Fed.  955 ;  Sperry- 
Hutchinson  Co.  v.  Tacoma,  190  Fed.  682 ;  Birmingham  Water 
Works  V.  Birmingham,  211  Fed.  497;  Calhoun  v.  City  of  Seattle, 
215  Fed.  226.  Nor  to  a  tax  levied  under  a  special  law. 
Lykins  v.  Chesapeake  &  O.  Ry.  Co.,  209  Fed.  573,  126  C.  C.  A. 
395. 

When  the  statute  does  apply.  Ex  parte  Metropolitan  Water 
Co.,  220  U.  S.  539,  55  L.  Ed.  575,  31  Sup.  Ct.  600;  Seaboard 
A.  L.  Ry.  V.  Railroad  Commission  of  Ga.,  213  Fed.  27;  Louis- 
ville &  X.  R.  Co.  V.  Garrett,  231  U.  S.  298,  58  L.  Ed.  229.  34  Sup. 
Ct.  48. 

Cited  as  to  right  of  appeal  to  Supreme  Court.  Rail  &  River 
Coal  Co.  V.  Yaple,  214  Fed.  273,  276.  Death  of  the  state  officer 
defendant  abates  an  appeal.  Pullman  Co.  v.  Croom,  231  U.  S. 
571,  58  L.  Ed.  375,  34  Sup.  Ct.  182. 

By  Sec.  5  act  Jan.  28,  1915  Congress  provided: 

"No  court  of  the  United  States  shall  have  jurisdiction  of  any 
section  or  suit  by  or  against  any  railroad  company  upon  the 
ground  that  said  railroad  company  was  in  operation  under  an 
act  of  Congress." 

§  454.  When  Act  Effective.— That  this  act  shall  take  effect 
and  be  in  force  from  and  after  the  expiration  of  sixty  days  after 
its  passage,  except  as  to  sections  twelve  and  sixteen,  which  sec- 
tions shall  take  efitect  and  be  in  force  immediately. 

Public,  No.  41,  approved  February  4,  1887,  as  amended  by 
Public,  No.  125,  approved  Alarch  2,  1889;  Public,  No.  72,  ap- 
proved February  10,  1891  ;  Public,  No.  38,  approved  February  8, 
1895;  Public,  No.  ?>Z7 ,  approved  June  29,  1906;  Public  Res., 
No.  47,  approved  June  30,  1906 ;  Public  No.  95  approved 
April  13,  1908 ;  Public,  No.  262,  approved  February 
25,  1909;  Public,  No.  218,  approved  June  18,  1910;  Public,  No. 
ZZ7,  approved  August  24,  1912;  Public,  No.  400,  approved 
March  1,  1913;  Public,  No.  48,  approved  January  20,  1914;  and 
Public,  No.  161,  approved  August  1,  1914. 

Section  18  of  act  June  18,  1910. 

§  455.  Parties  Defendant  Other  than  Carriers  in  Suit  to 
Enforce  Provisions  of  Act. — That  in  any  proceeding  for  the 
enforcement  of  the  provisions  of  the  statutes  relating  to  inter- 


644  Acts  Regulating  Commerce,  [§  456. 

state  commerce,  whether  such  proceedings  be  instituted  before 
the  Interstate  Commerce  Commission  or  be  begun  originally  in 
any  circuit  court  of  the  United  States,  it  shall  be  lawful  to  in- 
clude as  parties,  in  addition  to  the  carrier,  all  persons  interested 
in  or  affected  by  the  rate,  regulation,  or  practice  under  considera- 
tion, and  inquiries,  investigations,  orders  and  decrees  may  be 
made  with  reference  to  and  against  such  additional  parties  in  the 
same  manner,  to  the  same  extent,  and  subject  to  the  same  pro- 
visions as  are  or  shall  be  authorized  by  law  with  respect  to  car- 
riers. 

Section  two  of  the  original  act  of  February  19,  1903  (Elkins 
Act). 

In  1888  the  Commission  held  that  it  was  proper  to  make  par- 
ties all  carriers  interested  in  a  through  rate,  though  the  complaint 
was  not  defective  if  only  the  initial  carrier  was  a  party.  Hurl- 
burt  V.  Lake  S.  &  AI.  S.  R.  Co.,  2  I.  C.  C.  122,  2  I.  C.  R.  81. 

§  456.  Equitable  Proceedings  May  Be  Instituted  by  the 
Commission  to  Restrain  Discrimination  or  Departure 
from  Published  Rates. — That  whenever  the  Interstate  Com- 
merce Commission  shall  have  reasonable  ground  for  belief  that 
any  common  carrier  is  engaged  in  the  carriage  of  passengers  or 
freight  traffic  between  given  points  at  less  than  the  published 
rates  on  file,  or  is  committing  any  discriminations  forbidden  by 
law,  a  petition  may  be  presented  alleging  such  facts  to  the  cir- 
cuit court  of  the  United  States  sitting  in  equity  having  jurisdic- 
tion; and  when  the  act  complained  of  is  alleged  to  have  been 
committed  or  as  being  committed  in  part  in  more  than  one  judi- 
cial district  or  state,  it  may  be  dealt  with,  inquired  of,  tried,  and 
determined  in  either  such  judicial  district  or  state,  whereupon 
it  shall  be  the  duty  of  the  court  summarily  to  inquire  into  the 
circumstances,  upon  such  notice  and  in  such  manner  as  the  court 
shall  direct  and  without  the  formal  pleadings  and  proceedings 
applicable  to  ordinary  suits  in  equity,  and  to  make  such  other 
persons  or  corporations  parties  thereto  as  the  court  may  deem 
necessary,  and  upon  being  satisfied  of  the  truth  of  the  allegations 
of  said  petition  said  court  shall  enforce  an  observance  of  the  pub- 
lished tariffs  or  direct  and  require  a  discontinuance  of  such 
discrimination  by  proper  orders,  writs,  and  process,  which  said 
orders,  writs,  and  process  may  be  enforceable  as  well  against  the 
parties  interested  in  the  traffic  as  against  the  carrier,  subject  to 
the  right  of  appeal  as  now  provided  by  law.     It  shall  be  the  duty 


§  457.]  Annotated.  645 

of  the  several  district  attorneys  of  the  United  States,  whenever 
the  Attorney-General  shall  direct,  either  of  his  own  motion  or 
upon  the  request  of  the  Interstate  Commerce  Commission,  to  in- 
stitute and  prosecute  such  proceedings  and  the  proceedings  pro- 
vided for  by  this  act  shall  not  preclude  the  bringing  of  suit  for 
the  recovery  of  damages  by  any  party  injured,  or  any  other  ac- 
tion provided  by  said  act  approved  February  fourth,  eighteen 
hundred  and  eighty-seven,  entitled  "An  act  to  regulate  commerce 
and  the  acts  amendatory  thereof." 

First  part  of  section  three  of  the  act  February  19,  1903  (El- 
kins  Act),  as  originally  enacted. 

Prior  to  this  amendment  suit  could  be  maintained  in  the  name 
of  the  United  States  to  enjoin  discrimination.  United  States  v. 
Mo.  Pac.  R.  Co.,  65  Fed.  903,  5  I.  C.  R.  106.  Affirmed  by  circuit 
court  of  appeals  without  written  opinion.  Reversed,  holding 
that  prior  to  Elkins  Act  such  suit  could  not  be  maintained.  Mo. 
Pac.  R.  Co.  V.  United  States,  189  U.  S.  274,  47  L.  Ed.  811,  23 
Sup.  Ct.  507;  United  States  v.  Atchison,  T.  &  S.  F.  Ry.  Co., 
142  Fed.  176,  185,  186.  Prior  to  this  act  a  shipper  could  enjoin 
a  discrimination  prior  to  action  by  the  Commission.  Interstate 
Stock  Yards  v.  Indianapolis  U.  Ry.  Co.,  99  Fed.  472,  483.  Cited 
by  Supreme  Court.  192  U.  S.  568,  570,  48  L.  Ed,  565,  569,  24 
Sup.  Ct.  339.  Under  this  act  violations  occurring  prior  to  its 
passage  could  be  enjoined.  United  States  v.  Mich.  Cent.  R.  Co., 
122  Fed.  544.  ]\Iay  enjoin  giving  rebates.  United  States  v. 
Milwaukee  Refrigerator  T.  Co.,  145  Fed.  1007,  1010,  citing 
Swift  &  Co.  V.  United  States,  196  U.  S.  375,  49  L.  Ed.  518,  25 
Sup.  Ct.  276.  Suit  prosecuted  under  section.  Armour  Packing 
Co.  V.  United  States,  209  U.  S.  56,  52  L.  Ed.  681,  28  Sup.  Ct. 
428.  May  enjoin  giving  transportation  for  advertising.  United 
States  V.  Chicago,  I.  &  L.  R.  Co.,  163  Fed.  114. 

§  457.  Immunity  and  Compulsory  Attendance  of  Wit- 
nesses, Production  of  Books  and  Papers. — And  in  proceed- 
ings under  this  act  and  the  acts  to  regulate  commerce  the  said 
courts  shall  have  the  power  to  compel  the  attendance  of  wit- 
nesses, both  upon  the  part  of  the  carrier  and  the  shipper,  who 
shall  be  required  to  answer  on  all  subjects  relating  directly  or 
indirectly  to  the  matter  in  controversy,  and  to  compel  the  pro- 
duction of  all  books  and  papers,  both  of  the  carrier  and  the 
shipper,  which  relate  directly  or  indirectly  to  such  transaction; 
the  claim  that  such  testimony  or  evidence  may  tend  to  criminate 


646  Acts  Regulating  Commerce,  [§  458. 

the  person  giving  such  evidence  shall  not  excuse  such  person 
from  testifying  or  such  corporation  producing  its  books  and 
papers,  but  no  person  shall  be  prosecuted  or  subjected  to  any 
penalty  or  forfeiture  for  or  on  account  of  any  transaction,  mat- 
ter or  thing  concerning  which  he  may  testify  or  produce  evidence, 
documentary  or  otherwise,  in  such  proceeding. 

Second  part  of  section  three  of  the  act  of  February  19,  1903 
(Elkins  Act),  as  originally  enacted. 

§  458.  Expediting  Act  Applicable  to  Suits  Brought  un- 
der Direction  of  Attorney- General. — Provided,  That  the  pro- 
visions of  an  act  entitled  ''An  act  to  expedite  the  hearing  and 
determination  of  suits  in  equity  pending  or  hereafter  brought 
under  the  act  of  July  second,  eighteen  hundred  and  ninety,  enti- 
tled 'An  act  to  protect  trade  and  commerce  against  unlawful  re- 
straints and  monopolies,'  'An  act  to  regulate  commerce,'  approved 
February  fourth,  eighteen  hundred  and  eighty-seven,  or  any 
other  acts  having  a  like  purpose  that  may  hereafter  be  enacted, 
approved  February  eleventh  nineteen  hundred  and  three,"  shall 
apply  to  any  case  prosecuted  under  the  direction  of  the  Attor- 
ney-General in  the  name  of  the  Interstate  Commerce  Commis- 
sion. 

Last  part  of  section  three  of  the  act  of  February  19,  1903  (El- 
kins Act),  as  originally  enacted. 

Cited,  holding  that  proviso  did  not  prevent  an  action  by  Com- 
mission to  compel  the  production  of  papers.  Int.  Com.  Com.  v. 
Baird,  194  U.  S.  25,  36,  48  L.  Ed.  860,  865,  866,  24  Sup.  Ct.  563. 

See  Expediting  Act  Sec.  468.  Post. 

§  459.  Repealing  Clause  Not  Affecting  Pending  Suits  or 
Accrued  Rights.  When  Act  Takes  Effect. — That  all  acts 
and  parts  of  acts  in  conflict  with  the  provisions  of  this  act  are 
hereby  repealed,  but  such  repeal  shall  not  affect  causes  now 
pending,  nor  rights  which  have  already  accrued,  but  such  causes 
shall  be  prosecuted  to  a  conclusion,  and  such  rights  enforced  in 
a  manner  heretofore  provided  by  law  and  as  modified  by  the 
provisions  of  this  act. 

This  act  shall  take  effect  from  its  passage.  Public,  No.  103, 
approved  February  19,  1903. 

Sections  four  and  five  of  act  February  19,  1903  (Elkins  Act), 
as  originally  enacted. 

Section  four  did  not  save  a  suit  prosecuted  to  a  decree  prior 
to  the  enactment  of  the  Elkins  Act.     Mo.  Pac.  R.  Co.  v.  United 


§  460.]  Annotated.  647 

States,  189  U.  S.  274,  47  L.  Ed.  811,  23  Sup.  Ct.  507.  But  prose- 
cution for  injunction  against  acts  committed  prior  to  the  passage 
of  the  Elkins  law  could  be  maintained.  United  States  v.  Mich. 
Cent.  R.  Co.,  122  Fed.  544. 

§  460.  Commerce  Court. — That  a  court  of  the  United  States 
is  hereby  created  which  shall  be  known  as  the  commerce  court 
and  shall  have  the  jurisdiction  now  possessed  by  circuit  courts 
of  the  United  States  and  the  judges  thereof  over  all  cases  of  the 
following  kinds : 

First.  All  cases  for  the  enforcement,  otherwise  than  by  ad- 
judication and  collection  of  a  forfeiture  or  penalty  or  by  in- 
fliction or  criminal  punishment,  of  any  order  of  the  Interstate 
Commerce  Commission  other  than  for  the  payment  of  money. 

Second.  Cases  brought  to  enjoin,  set  aside,  annul,  or  suspend 
in  whole  or  in  part  any  order  of  the  Interstate  Commerce  Com- 
mission. 

Third.  Such  cases  as  hy  section  three  of  the  act  entitled  "An 
act  to  further  regulate  commerce  with  foreign  nations  and  among 
the  states,"  approved  February  nineteenth,  nineteen  hundred 
and  three,  are  authorized  to  be  maintained  in  a  circuit  court  of 
the  United  States. 

Fourth.  All  such  mandamus  proceedings  as  under  the  pro- 
visions of  section  twenty  or  section  twenty-three  of  the  act  en- 
titled "An  act  to  regulate  commerce,"  approved  February  fourth, 
eighteen  hundred  and  eighty-seven,  as  amended,  are  authorized 
to  be  maintained  in  a  circuit  court  of  the  United  States. 

Nothing  contained  in  this  act  shall  be  construed  as  enlarging 
the  jurisdiction  now  possessed  by  the  circuit  courts  of  the  United 
States  or  the  judges  thereof,  that  is  hereby  transferred  to  and 
vested  in  the  commerce  court. 

The  jurisdiction  of  the  commerce  court  over  cases  of  the  fore- 
going classes  shall  be  exclusive ;  but  this  act  shall  not  affect  the 
jurisdiction  now  possessed  by  any  circuit  or  district  court  of 
the  United  States  over  cases  or  proceedings  of  a  kind  not  within 
the  above-enumerated  classes. 

The  commerce  court  shall  be  a  court  of  record,  and  shall  have 
a  seal  of  such  form  and  style  as  the  court  may  prescribe.  The 
said  court  shall  be  composed  of  five  judges,  to  be  from  time  to 
time  designated  and  assigned  thereto  by  the  Chief  Justice  of 
the  United  States,  from  among  the  circuit  judges  of  the  United 


648  Acts  Regulating  Commerce,  [§  460. 

States,  for  the  period  of  five  years,  except  that  in  the  first  in- 
stance the  court  shall  be  composed  of  the  five  additional  circuit 
judges  to  be  appointed  as  hereinafter  provided,  who  shall  be 
designated  by  the  President  to  serve  for  one,  two,  three,  four, 
and  five  years,  respectively,  in  order  that  the  period  of  designa- 
tion of  one  of  the  said  judges  shall  expire  in  each  year  there- 
after. In  case  of  the  death,  resignation,  or  termination  of  as- 
signment of  any  judge  so  designated,  the  Chief  Justice  shall 
designate  a  circuit  judge  to  fill  the  vacancy  so  caused  and  to 
serve  during  the  unexpired  period  for  which  the  original  desig- 
nation was  made.  After  the  year  nineteen  hundred  and  four- 
teen no  circuit  judge  shall  be  redesignated  to  serve  in  the  com- 
merce court  until  the  expiration  of  at  least  one  year  after  the 
expiration  of  the  period  of  his  last  previous  designation.  The 
judge  first  designated  for  the  five-year  period  shall  be  the  pre- 
siding judge  of  said  court,  and  thereafter  the  judge  senior  in 
designation  shall  be  the  presiding  judge. 

Each  of  the  judges  during  the  period  of  his  service  in  the 
commerce  court  shall,  on  account  of  the  regular  sessions  of  the 
court  being  held  in  the  city  of  Washington,  receive  in  addition 
to  his  salary  as  circuit  judge  an  expense  allowance  at  the  rate 
of  one  thousand  five  hundred  dollars  per  annum. 

The  President  shall,  by  and  with  the  advice  and  consent  of  the 
Senate,  appoint  five  additional  circuit  judges  no  two  of  whom 
shall  be  from  the  same  judicial  circuit,  who  shall  hold  office 
during  good  behavior  and  who  shall  be  from  time  to  time  desig- 
nated and  assigned  by  the  Chief  Justice  of  the  United  States 
for  service  in  the  circuit  court  for  any  district,  or  the  circuit 
court  of  appeals  for  any  circuit,  or  in  the  commerce  court. 

The  associate  judges  shall  have  precedence  and  shall  succeed 
to  the  place  and  powers  of  the  presiding  judge  whenever  he  may 
be  absent  or  incapable  of  acting  in  the  order  of  the  date  of  their 
designations.  Four  of  said  judges  shall  constitute  a  quorum, 
and  at  least  a  majority  of  the  court  shall  concur  in  all  de- 
cisions. 

The  court  shall  also  have  a  clerk  and  a  marshal,  with  the 
same  duties  and  powers,  so  far  as  they  may  be  appropriate  and 
are  not  altered  by  rule  of  the  court,  as  are  now  possessed  by 
the  clerk  and  marshal,  respectively,  of  the  Supreme  Court  of 
the  United  States.     The  offices  of  the  clerk  and  marshal  of  the 


§  460.]  Annotated.  649 

court  shall  be  in  the  city  of  Washington,  in  the  District  of  Colum- 
bia. The  judges  of  the  court  shall  appoint  the  clerk  and  marshal, 
and  may  also  appoint,  if  they  find  it  necessary,  a  deputy  clerk 
and  deputy  marshal ;  and  such  clerk^  marshal,  deputy  clerk,  and 
deputy  marshal  shall  hold  office  during  the  pleasure  of  the  court. 
The  salary  of  the  clerk  shall  be  four  thousand  dollars  per  an- 
num; the  salary  of  the  marshal  three  thousand  dollars  per  an- 
num; the  salary  of  the  deputy  clerk  two  thousand  five  hundred 
dollars  per  annum ;  and  the  salary  of  the  deputy  marshal  two 
thousand  five  hundred  dollars  per  annum.  The  said  clerk  and 
marshal  may,  with  the  approval  of  the  court,  employ  all  requi- 
site assistance.  The  costs  and  fees  in  said  court  shall  be  estab- 
lished by  the  court  in  a  table  thereof,  approved  by  the  Supreme 
Court  of  the  United  States,  within  four  months  after  the  organi- 
zation of  the  court;  but  such  costs  and  fees  shall  in  no  case  ex- 
ceed those  charged  in  the  Supreme  Court  of  the  United  States, 
and  shall  be  accounted  for  and  paid  into  the  Treasury  of  the 
United  States. 

The  commerce  court  shall  always  be  open  for  the  transaction 
of  business.  Its  regular  sessions  shall  be  held  in  the  city  of 
Washington,  in  the  District  of  Columbia;  but  the  powers  of  the 
court  or  of  any  judge  thereof,  or  of  the  clerk,  marshal,  deputy 
clerk,  or  deputy  marshal  may  be  exercised  anywhere  in  the 
United  States;  and  for  expedition  of  the  work  of  the  court  and 
the  avoidance  of  undue  expense  or  inconvenience  to  suitors  the 
court  shall  hold  sessions  in  different  parts  of  the  United  States 
as  may  be  found  desirable.  The  actual  and  necessary  expenses 
of  the  judges,  clerk,  marshal,  deputy  clerk,  and  deputy  mar- 
shal of  the  court  incurred  for  travel  and  attendance  elsewhere 
than  in  the  city  of  Washington  shall  be  paid  upon  the  written 
and  itemized  certificate  of  such  judge,  clerk,  marshal,  deputy 
clerk,  or  deputy  marshal  by  the  marshal  of  the  court,  and  shall 
be  allowed  to  him  in  the  statement  of  his  accounts  with  the 
United  States. 

The  United  States  marshals  of  the  several  districts  outside  of 
the  city  of  Washington  in  which  the  commerce  court  may  hold 
its  sessions  shall  provide,  under  the  direction  and  with  the 
approval  of  the  Attorney-General  of  the  United  States,  such 
rooms  in  the  public  buildings  of  the  United  States  as  may  be 
necessary  for  the  court's  use ;  but  in  case  proper  room  can  not 


650  Acts  Regulating  Commerce,  [§  460. 

be  provided  in  such  public  buildings,  said  marshals,  with  the  ap- 
proval of  the  Attorney-General  of  the  United  States,  may  then 
lease  from  time  to  time  other  necessary  rooms  for  the  court. 

If,  at  any  time,  the  business  of  the  commerce  court  does  not 
require  the  services  of  all  the  judges,  the  Chief  Justice  of  the 
United  States  may,  by  writing,  signed  by  him  and  filed  in  the 
Department  of  Justice,  terminate  the  assignment  of  any  of  the 
judges  or  temporarily  assign  him  for  service  in  any  court  or 
circuit  court  of  appeals.  In  case  of  illness  or  other  disability  of 
any  judge  assigned  to  the  commerce  court  the  Chief  Justice  of 
the  United  States  may  assign  any  other  circuit  judge  of  the 
United  States  to  act  in  his  place,  and  may  terminate  such  assign- 
ment when  the  exigence  therefor  shall  cease ;  and  any  circuit 
judge  so  assigned  to  act  in  place  of  such  judge  shall,  during  his 
assignment,  exercise  all  the  powers  and  perform  all  the  functions 
of  such  judge. 

In  all  cases  within  its  jurisdiction  the  commerce  court,  and 
each  of  the  judges  assigned  thereto,  shall,  respectively,  have 
and  may  exercise  any  and  all  of  the  powers  of  a  circuit  court  of 
the  United  States  and  of  the  judges  of  said  court,  respectively, 
so  far  as  the  same  may  be  appropriate  to  the  effective  exercise 
of  the  jurisdiction  hereby  conferred.  The  commerce  court  may 
issue  all  writs  and  process  appropriate  to  the  full  exercise  of 
its  jurisdiction  and  powers  and  may  prescribe  the  form  there- 
of. It  may  also,  from  time  to  time,  establish  such  rules  and  regu- 
lations concerning  pleading,  practice,  or  procedure  in  cases  or 
matters  within  its  jurisdiction  as  to  the  court  shall  seem  wise 
and  proper.  Its  orders,  writs,  and  process  may  run,  be  served, 
and  be  returnable  anywhere  in  the  United  States ;  and  the 
marshal  and  deputy  marshal  of  said  court  and  also  the  United 
States  marshals  and  deputy  marshals  in  the  several  districts 
of  the  United  States  shall  have  like  powers  and  be*  under  like 
duties  to  act  for  and  in  behalf  of  said  court  as  pertain  to  United 
States  marshals  and  deputy  marshals  .generally  when  acting  un- 
der like  conditions  concerning  suits  or  matters  in  the  circuits  of 
the  United  States. 

The  jurisdiction  of  the  commerce  court  shall  be  invoked  by 
filing  in  the  office  of  the  clerk  of  the  court  a  written  petition 
setting  forth  briefly  and  succinctly  the  facts  constituting  the  pe- 
titioner's cause  of  action,  and  specifying  the  relief  sought.     A 


§  460.]  Annotated.  651 

copy  of  such  petition  shall  be  forthwith  served  by  the  marshal 
or  a  deputy  marshal  of  the  commerce  court  or  by  the  proper 
United  States  marshal  or  deputy  marshal  upon  every  defendant 
therein  named,  and  when  the  United  States  is  a  party  defendant, 
the  service  shall  be  made  by  filing  a  copy  of  said  petition  in  the 
office  of  the  secretary  of  the  Interstate  Commerce  Commission 
and  in  the  Department  of  Justice.  Within  thirty  days  after 
the  petition  is  served,  unless  that  time  is  extended  by  order  of 
the  court  or  a  judge  thereof,  an  answer  to  the  petition  shall 
be  filed  in  the  clerk's  office,  and  a  copy  thereof  mailed  to  the 
petitioner's  attorney,  which  answer  shall  briefly  and  categoric- 
ally respond  to  the  allegations  of  the  petition.  No  replication 
need  be  filed  to  the  answer,  and  objections  to  the  sufficiency  of 
the  petition  or  answer  as  not  setting  forth  a  cause  of  action  or 
defense  must  be  taken  at  the  final  hearing  or  by  motion  to  dis- 
miss the  petition  based  on  said  grounds,  which  motion  may  be 
made  at  any  time  before  answer  is  filed.  In  case  no  answer  shall 
be  filed  as  provided  herein  the  petitioner  may  apply  to  the  court 
on  notice  for  such  relief  as  may  be  proper  upon  the  facts  al- 
leged in  the  petition.  The  court  may,  by  rule,  prescribe  the 
method  of  taking  evidence  in  cases  pending  in  said  court;  and 
may  prescribe  that  the  evidence  be  taken  before  a  single  judge 
of  the  court,  with  power  to  rule  upon  the  admission  of  evidence. 
Except  as  may  be  otherwise  provided  in  this  act,  or  by  rule  of 
the  court,  the  practice  and  procedure  in  the  commerce  court  shall 
conform  as  nearly  as  may  be  to  that  in  like  cases  in  a  circuit 
court  of  the  United  States. 

The  commerce  court  shall  be  opened  for  the  transaction  of 
business  at  a  date  to  be  fixed  by  order  of  the  said  court,  which 
shall  not  be  later  than  thirty  days  after  the  judges  thereof  shall 
have  been  designated. 

Sec.  2.  That  a  final  judgment  or  decree  of  the  commerce  court 
may  be  reviewed  by  the  Supreme  Court  of  the  United  States  if 
appeal  to  the  Supreme  Court  be  taken  by  an  aggrieved  party 
within  sixty  days  after  the  entry  of  said  final  judgment  or  de- 
cree. Such  appeal  may  be  taken  in  like  manner  as  appeals  from 
a  circuit  court  of  the  United  States  to  the  Supreme  Court,  and 
the  commerce  court  may  direct  the  original  record  to  be  trans- 
mitted on  appeal  instead  of  a  transcript  thereof.  The  Supreme 
Court  may  affirm,  reverse,  or  modify  the  final  judgment  or  decree 
of  the  commerce  court  as  the  case  may  require. 


652  Acts  Regulating  Commerce,  [§  460. 

Appeal  to  the  Supreme  Court,  however,  shall  in  no  case  super- 
sede or  stay  the  judgment  or  decree  of  the  commerce  court  ap- 
pealed from,  unless  the  Supreme  Court  or -a  justice  thereof  shall 
so  direct,  and  appellant  shall  give  bond  in  such  form  and  of 
such  amount  as  the  Supreme  Court,  or  the  justice  of  that  court 
allowing  the  stay,  may  require. 

An  appeal  may  also  be  taken  to  the  Supreme  Court  of  the 
United  States  from  an  interlocutory  order  or  decree  of  the  Com- 
merce Court  granting  or  continuing  an  injunction  restraining 
the  enforcement  of  an  order  of  the  Interstate  Commerce  Com- 
mission, provided  such  appeal  be  taken  within  thirty  days  from 
the  entry  of  such  order  or  decree. 

Appeals  to  the  Supreme  Court  under  this  section  shall  have 
priority  in  hearing  and  determination  over  all  other  causes  ex- 
cept criminal  causes  in  the  court. 

Sec.  3.  That  suits  to  enjoin,  set  aside,  annul,  or  suspend  any 
order  of  the  Interstate  Commerce  Commission  shall  be  brought 
in  the  commerce  court  against  the  United  States.  The  pendency 
of  such  suit  shall  not  of  itself  stay  or  suspend  the  operation  of 
the  order  of  the  Interstate  Commerce  Commission;  but  the  com- 
merce court,  in  its  discretion,  may  restrain  or  suspend,  in  whole 
or  in  part,  the  operation  of  the  Commission's  order  pending  the 
final  hearing  and  determination  of  the  suit.  No  order  or  in- 
junction so  restraining  or  suspending  an  order  of  the  Interstate 
Commerce  Commission  shall  be  made  by  the  commerce  court 
otherwise  than  upon  notice  and  after  hearing,  except  that  in 
cases  where  irreparable  damage  would  otherwise  ensue  to  the 
petitioner,  said  court,  or  a  judge  thereof,  may,  on  hearing,  after 
not  less  than  three  days'  notice  to  the  Interstate  Commerce  Com- 
mission and  the  Attorney-General,  allow  a  temporary  stay  or 
suspension  in  whole  or  in  part  of  the  operation  of  the  order  of 
the  Interstate  Commerce  Commission  for  not  more  than  sixty 
days  from  the  date  of  the  order  of  such  court  or  judge,  pending, 
application  to  the  court  for  its  order  or  injunction,  in  which 
case  the  said  order  shall  contain  a  specific  finding,  based  upon 
evidence  submitted  to  the  judge  making  the  order  and  identified 
by  reference  thereto,  that  such  irreparable  damage  would  result 
to  the  petitioner  and  specifying  the  nature  of  the  damage.  The 
court  may,  at  the  time  of  hearing  such  application,  upon  a  like 
finding,  continue  the  temporary  stay  or  suspension  in  whole  or 
in  j»rt  until  its  decision  upon  the  application. 


§  460.]  Annotated.  653 

Sec.  4.  That  all  cases  and  proceedings  in  the  commerce  court 
which  but  for  this  act  would  be  brought  by  or  against  the  Inter- 
state Commerce  Commission  shall  be  brought  by  or  against  the 
United  States,  and  .the  United  States  may  intervene  in  any  case 
or  proceeding  in  the  commerce  court  whenever,  though  it  has 
not  been  made  a  party,  public  interests  are  involved. 

Sec.  5.  That  the  Attorney-General  shall  have  charge  and  con- 
trol of  the  interest  of  the  Government  in  all  cases  and  proceed- 
ings in  the  commerce  court,  and  in  the  Supreme  Court  of  the 
United  States  upon  appeal  from  the  commerce  court ;  and  if 
in  his  opinion  the  public  interest  requires  it,  he  may  retain  and 
employ  in  the  name  of  the  United  States,  within  the  appro- 
priations from  time  to  time  made  by  the  Congress  for  such  pur- 
poses, such  special  attorneys  and  counselors  at  law  as  he  may 
think  necessary  to  assist  in  the  discharge  of  any  of  the  duties 
incumbent  upon  him  and  his  subordinate  attorneys ;  and  the  At- 
torney-General shall  stipulate  with  such  special  attorneys  and 
counsel  the  amount  of  their  compensation,  which  shall  not  be 
in  excess  of  the  sums  appropriated  therefor  by  Congress  for  such 
purposes,  and  shall  have  supervision  of  their  action:  Provided, 
That  the  Interstate  Commerce  Commission  and  any  party  or 
parties  in  interest  to  the  proceeding  before  the  Commission,  in 
which  an  order  or  requirement  is  made,  may  appear  as  parties 
thereto  of  theij  own  motion  and  as  of  right,  and  be  represented 
by  their  counsel,  in  any  suit  wherein  is  involved  the  validity 
of  such  order  or  requirement  or  any  part  thereof,  and  the  in- 
terest of  such  party;  and  the  court  wherein  is  pending  such  suit 
may  make  all  such  rules  and  orders  as  to  such  appearances  and 
representations,  the  number  of  counsel,  and  all  matters  of  pro- 
cedure, and  otherwise,  as  to  subserve  the  ends  of  justice  and 
speed  the  determination  of  such  suits :  Provided  further,  That 
communities,  associations,  corporations,  firms,  and  individuals 
who  are  interested  in  the  controversy  or  question  before  the 
Interstate  Commerce  Commission,  or  in  any  suit  which  may  be 
brought  by  anyone  under  the  terms  of  this  act,  or  the  acts  of 
which  it  is  amendatory  or  which  are  amendatory  of  it,  relating 
to  action  of  the  Interstate  Commerce  Commission,  may  inter- 
vene in  said  suit  or  proceedings  at  any  time  after  the  institution 
thereof,  and  the  Attorney-General  shall  not  dispose  of  or  dis- 
continue said  suit  or  proceeding  over  the  objections  of  such  party 


654  Acts  Regulating  Commerce,  [§  460. 

or  intervenor  aforesaid,  but  said  intervenor  or  intervenors  may 
prosecute,  defend,  or  continue  said  suit  or  proceeding,  unaf- 
fected by  the  action  or  nonaction  of  the  x\ttorney-General  of 
the  United  States  therein. 

Complainants  before  the  Interstate  Commerce  Commission  in- 
terested in  a  case  shall  have  the  right  to  appear  and  be  made 
parties  to  the  case  and  be  represented  before  the  courts  by  coun- 
sel under  such  regulations  as  are  now  permitted  in  similar  cir- 
cumstances under  the  rules  and  practice  of  equity  courts  of  the 
United  States. 

Sec.  6.  That  until  the  opening  of  the  commerce  court  as  in 
section  one  hereof  provided,  all  cases  and  proceedings  of  which 
from  that  time  the  commerce  court  is  hereby  given  exclusive  ju- 
risdiction may  be  brought  in  the  same  courts  and  conducted  in 
like  manner  and  with  like  efifect  as  is  now -provided  by  law; 
and  if  any  such  case  or  proceeding  shall  have  gone  to  final  judg- 
ment or  decree  before  the  opening  of  the  commerce  court,  appeal 
may  be  taken  from  such  final  judgment  or  decree  in  like  man- 
ner and  with  like  effect  as  is  now  provided  by  law.  Any  such 
case  or  proceeding  within  the  jurisdiction  of  the  commerce  court 
which  may  have  been  begun  in  any  other  court  as  hereby  allowed 
before  the  said  date  shall  be  forthwith  transferred  to  the  com- 
merce court,  if  it  has  not  yet  proceeded  to  final  judgment  or  de- 
cree in  such  other  court  unless  it  has  been  finally  submitted  for 
the  decision  of  such  court,  in  which  case  the  cause  shall  proceed 
in  such  court  to  final  judgment  or  decree  any  further  proceed- 
ing thereafter,  and  appeal  may  be  taken  direct  to  the  Supreme 
Court,  and  if  remanded  such  cause  may  be  sent  back  to  the  court 
from  which  the  appeal  was  taken  or  to  the  commerce  court  for 
further  proceeding  as  the  Supreme  Court  shall  direct;  and  all 
previous  proceedings  in  such  transferred  case  shall  stand  and 
operate  notwithstanding  the  transfer,  subject  to  the  same  control 
over  them  by  the  commerce  court  and  to  the  same  right  of  sub- 
sequent action  in  the  case  or  proceeding  as  if  the  transferred 
case  or  proceeding  had  been  originally  begun  in  the  commerce 
court.  The  clerk  of  the  court  from  which  any  case  or  proceed- 
ing is  so  transferred  to  the  commerce  court  shall  transmit  to 
and  file  in  the  commerce  court  the  originals  of  all  papers  filed 
in  such  case  or  proceeding  and  a  certified  transcript  of  all  record 
entries  in  the  case  or  proceeding  up  to  the  time  of  transfer. 


§  461.]  Annotate;d.  655 

It  shall  be  the  duty  of  every  common  carrier  subject  to  the 
provisions  of  this  act,  within  sixty  days  after  the  taking  effect 
of  this  act,  to  designate  in  writing  an  agent  in  the  city  of  Wash- 
ington, District  of  Cohimbia,  upon  whom  service  of  all  notices 
and  processes  may  be  made  for  and  on  behalf  of  said  common 
carrier  in  any  proceeding  or  suit  pending  before  the  Interstate 
Commerce  Commission  or  before  said  commerce  court,  and  to 
file  such  designation  in  the  office  of  the  secretary  of  the  Inter- 
state Commerce  Commission,  which  designation  may  from  time 
to  time  be  changed  by  like  writing  similarly  filed ;  and  there- 
upon service  of  all  notices  and  processes  may  be  made  upon  such 
common  carrier  by  leaving  a  copy  thereof  with  such  designated 
agent  at  his  office  or  usual  place  of  residence  in  the  city  of 
Washington,  with  like  effect  as  if  made  personally  upon  such 
common  carrier,  and  in  default  of  such  designation  of  such 
agent,  service  of  any  notice  or  other  process  in  any  proceeding 
before  said  Interstate  Commerce  Commission  or  commerce  court 
may  be  made  by  posting  such  notice  or  process  in  the  office  of 
the  secretary  of  the  Interstate  Commerce  Commission. 

While  the  commerce  court  has  been  abolished,  the  jurisdiction 
conferred  thereon  has  been  transferred  to  the  district  courts, 
which  makes  the  statute  creating  the  commerce  court  of  interest. 
See  also  Judicial  Code  Sections  200  to  214  inclusive.  For  prac- 
tice and  procedure  in  the  commerce  court  see  Standard  Encyclo- 
poedia  of  Procedure,  Vol.  5,  p.  153,  article  by  the  author  hereof. 
The  commerce  court  had  no  jurisdiction  when  the  Commission 
refused  relief  to  a  shipper.  Hooker  z'.  Knapp,  225  U.  S.  302, 
56  L.  Ed.  1099,  32  Sup.  Ct.  769.  Right  of  commerce  court  to 
issue  injunctions.  Int.  Com.  Com.  v.  B.  &  O.  R.  R.  Co.,  225  U. 
S.  326,  56  L.  Ed.  1107,  32  Sup.  Ct.  742. 

§  461.  Commerce  Court  Abolished. — The  commerce  court, 
created  and  established  by  the  act  entitled  "An  act  to  create  a 
commerce  court  and  to  amend  the  act  entitled  'An  act  to  regu- 
late commerce,'  approved  February  fourth,  eighteen  hundred  and 
eighty-seven,  as  heretofore  amended,  and  for  other  purposes," 
approved  June  eighteenth,  nineteen  hundred  and  ten,  is  abolished 
from  and  after  December  thirty-first,  nineteen  hundred  and  thir- 
teen, and  the  jurisdiction  vested  in  commerce  court  by  said 
act  is  transferred  to  and  vested  in  the  several  district  courts  of 
the  United  States,  and  all  acts  or  parts  of  acts  in  so  far  as  they 


656  Acts  Regulating  Commerce,  [§  462. 

relate  to  the  establishment  of  the  said  commerce  court  are  re- 
pealed. Nothing  herein  contained  shall  be  deemed  to  affect  the 
tenure  of  any  of  the  judges  now  acting  as  circuit  judges  by  ap- 
j)ointment  under  the  terms  of  said  act,  but  such  judges  shall 
continue  to  act  under  assignment,  as  in  the  said  act  provided,  as 
judges  of  the  district  courts  and  circuit  courts  of  appeals;  and 
in  the  event  of  and  on  the  death,  resignation,  or  removal  from 
office  of  any  of  such  judges,  his  office  is  hereby  abolished  and  no 
successor  to  him  shall  be  appointed. 

First  paragraph  of  that  section  of  the  Appropriation  Act  which 
abolished  the  commerce  court — act  approved  Oct.  22,  1913. 
Known  as  District  Court  Jurisdiction  Act.  The  succeeding  four 
sections  are  taken  from  the  same  act. 

§  462.  Venue  of  Suits  on  Order  of  Interstate  Commerce 
Commission. — The  venue  of  any  suit  hereafter  brought  to  en- 
force, suspend,  or  set  aside,  in  whole  or  in  part,  any  order  of 
the  Interstate  Commerce  Commission  shall  be  in  the  judicial  dis- 
trict wherein  is  the  residence  of  the  party  or  any  of  the  parties 
upon  whose  petition  the  order  was  made,  except  that  where  the 
order  does  not  relate  to  transportation  or  is  not  made  upon  the 
petition  of  any  party  the  venue  shall  be  in  the  district  where  the 
matter  complained  of  in  the  petition  before  the  Commission  arises, 
and  except  that  where  the  order  does  not  relate  either  to  trans- 
portation or  to  a  matter  so  complained  of  before  the  Commission 
the  matter  covered  by  the  order  shall  be  deemed  to  arise  in  the 
district  where  one  of  the  petitioners  in  court  has  either  its  prin- 
cipal office  or  its  principal  operating  office.  In  case  such  trans- 
portation relates  to  a  through  shipment  the  term  "destination" 
shall  be  construed  as  meaning  final  destination  of  such  ship- 
ment. 

Second  paragraph  of  Section  of  act  of  October  22,  1913. 

The  former  statute,  being  the  first  part  of  the  11th  paragraph 
of  Section  16,  read : 

The  venue  of  suits  brought  in  any  of  the  circuit  courts  of  the 
United  States  against  the  Commission  to  enjoin,  set  aside,  annul. 
or  suspend  any  order  or  requirement  of  the  Commission  shall 
be  in  the  district  where  the  carrier  against  whom  such  order  or 
requirement  may  have  been  made  has  its  principal  operating  of- 
fice, and  may  be  brought  at  any  time  after  such  order  is  pro- 
mulgated.     And   if   the   order   or    requirement    has   been   made 


§  463.]  Annotated.  657 

against  two  or  more  carriers  then  in  the  district  where  any  one 
of  said  carriers  has  its  principal  operating  office,  and  if  the  car- 
rier has  its  principal  operating  office  in  the  District  of  Columbia 
then  the  venue  shall  be  in  the  district  where  said  carrier  has  its 
principal  office;  and  jurisdiction  to  hear  and  determine  such  suits 
is  hereby  vested  in  such  courts. 

First  part  of  the  eleventh  paragraph  of  section  sixteen. 

Jurisdiction  under  the  old  law  of  suits  by  the  Commission.  Int. 
Com.  Com.  v.  Tex.  &  Pac.  Ry.  Co.,  57  Fed.  948,  6  C.  C.  A.  653, 
20  U.  S.  App.  1,  4  I.  C.  R.  408;  Int.  Com.  Com.  v.  So.  Pac.  Co., 
74  Fed.  42. 

Under  the  Hepburn  law,  Sanborn,  Hook  and  Adams,  Judges, 
announced  this  proposition : 

"We  refrain  from  expressing  any  opinion  concerning  what 
other  jurisdiction,  if  any,  is  conferred  upon  this  court  by  the 
broad  and  comprehensive  language  of  the  Hepburn  Act,  author- 
izing it  to  'enjoin,  set  aside,  annul  or  suspend  any  order  or  re- 
quirement of  the  Commission.'  All  we  are  required  to  hold,  and 
all  we  do  hold,  is  that  this  court  has  ample  jurisdiction  to  set 
aside  or  suspend  any  order  of  the  Commission  resulting  from  a 
misconception  and  misapplication  of  a  law  to  conceded  or  un- 
disputed facts."  Stickney  v.  Int.  Com.  Com.,  164  Fed.  638,  644. 
Rules  announced  in  a  suit  to  set  aside  an  order  of  the  Commis- 
sion. Judges  \^an  Devanter,  Hook  and  Adams.  Mo.,  Kan.  & 
Tex.  R.  Co.  V.  Int.  Com.  Com.,  164  Fed.  645 ;  C,  R.  I.  &  P.  R. 
Co.  V.  Int.  Com.  Com.  (Missouri  River  Rate  case),  171  Fed.  680. 

§  463.  Procedure  in  the  District  Courts. — The  procedure 
in  the  district  courts  in  respect  to  cases  of  which  jurisdiction  is 
conferred  upon  them  by  this  act  shall  be  the  same  as  that  here- 
tofore prevailing  in  the  commerce  court.  The  orders,  writs,  and 
processes  of  the  district  courts  may  in  these  cases  run,  be  served, 
and  be  returnable  anywhere  in  the  United  States ;  and  the  right 
of  appeal  from  the  district  courts  in  such  cases  shall  be  the  same 
as  the  right  of  appeal  heretofore  prevailing  under  existing  law 
from  the  commerce  court.  No  interlocutory  injunction  suspend- 
ing or  restraining  the  enforcement,  operation,  or  execution  of, 
or  setting  aside,  in  whole  or  in  part,  any  order  made  or  entered 
by  the  Interstate  Commerce  Commission  shall  be  issued  or 
granted  by  any  district  court  of  the  United  States,  or  by  any 
judge  thereof,  or  by  any  circuit  judge  acting  as  district  judge. 


658  Acts  Regulating  Commerce,  [§  464. 

unless  the  application  for  the  same  shall  be  presented  to  a  circuit 
or  district  judge,  and  shall  be  heard  and  determined  by  three 
judges,  of  whom  at  least  one  shall  be  a  circuit  judge,  and  unless 
a  majority  of  said  three  judges  shall  concur  in  granting  such  ap- 
plication. When  such  application  as  aforesaid  is  presented  to  a 
judge,  he  shall  immediately  call  to  his  assistance  to  hear  and 
determine  the  application  of  two  other  judges.  Said  application 
shall  not  be  heard  or  determined  before  at  least  five  days'  notice 
of  the  hearing  has  been  given  to  the  Interstate  Commerce  Com- 
mission, to  the  Attorney-General  of  the  United  States,  and  to 
such  other  persons  as  may  be  defendants  in  the  suit. 

First  part  of  third  paragraph  of  the  Section  of  act  of  Oct.  22, 
1913.  What  force  shall  be  given  by  the  courts  to  orders  of  the 
Commission  is  a  question  discussed  in  Sec.  309  ante.  See  also 
Int.  Com.  Com.  v.  Chicago,  R.  I.  &  P.  R.  Co.,  218  U.  S.  88,  54  L. 
Ed.  946,  30  Sup.  Ct.  651 :  Int.  Com.  Com.  v.  Chicago,  B.  &  O.  R. 
Co.,  218  U.  S.  113,  54  L.  Ed.  959,  30  Sup.  Ct.  660;  Int.  Com.  Com. 
7'.  Delaware,  L.  &  W.  R.  Co.,  220  U.  S.  235,  55  L.  Ed.  448,  31 
Sup.  Ct.  392;  Int.  Com.  Com.  v.  Union  P.  R.  Co.,  222  U.  S.  541, 
56  L.  Ed.  308,  32  Sup.  Ct.  108 ;  Int.  Com.  Com.  v.  Northern  P.  R. 
Co.,  216  U.  S.  538,  54  L.  Ed.  608,  30  Sup.  Ct.  417;  Int.  Com. 
Com.  V.  Louisville  &  N.  R.  Co.,  227  U.  S.  88,  57  L.  Ed.  431,  33 
Sup.  Ct.  185. 

The  Commission  must  grant  a  hearing  which  must  be  both  ad- 
equate and  fair,  and  the  conclusions  must  not  be  contrary  "to 
the  indisputable  character  of  the  evidence."  Int.  Com.  Com.  v. 
I...  &  N.  R.  Co.,  227  U.  S.  88,  supra,  citing  cases. 

§  464.  Temporary  Restraining  Orders. — Provided,  That  in 
cases  where  irreparable  damage  would  otherwise  ensue  to  the  peti- 
tioner, a  majority  of  said  three  judges  concurring  may,  on  hear- 
ing, after  not  less  than  three  days'  notice  to  the  Interstate  Com- 
merce Commission  and  the  Attorney-General,  allow  a  temporary 
stay  or  suspension,  in  whole  or  in  part,  of  the  operation  of  the 
order  of  the  Interstate  Commerce  Commission  for  not  more 
than  sixty  days  from  the  date  of  the  order  of  the  said  judges  pend- 
ing the  application  for  the  order  or  injunction,  in  which  case  the 
said  order  shall  contain  a  specific  finding  based  upon  evidence 
submitted  to  the  judges  making  the  order  and  identified  by 
reference  thereto,  that  such  irreparable  damage  would  result  to 
the  petitioner  and  specifying  the  nature  of  the  damage.     The 


§  465.]  Annotated.  659 

said  judges  may,  at  the  time  of  hearing  such  application,  upon  a 
like  finding,  continue  the  temporary  stay  or  suspension  in  whole 
or  in  part  until  decision  upon  the  application.  The  hearing  upon 
such  application  for  an  interlocutory  injunction  shall  be  given 
precedence  and  shall  be  in  every  way  expedited  and  be  assigned 
for  a  hearing  at  the  earliest  practicable  day  after  the  expiration 
of  the  notice  hereinbefore  provided  for. 

Second  part  third  paragraph  of  Section  4  of  act  Oct.  22,  1913. 

§  465.  An  Appeal  to  the  Supreme  Court  from  Interlocu- 
tory Orders. — An  appeal  may  be  taken  direct  to  the  Supreme 
Court  of  the  United  States  from  the  order  granting  or  denying, 
after  notice  and  hearing,  an  interlocutory  injunction,  in  such  case 
if  such  appeal  be  taken  within  thirty  days  after  the  order,  in  re- 
spect to  which  complaint  is  made,  is  granted  or  refused ;  and 
upon  the  final  hearing  of  any  suit  brought  to  suspend  or  set 
aside,  in  whole  or  in  part,  any  order  of  said  Commission  the  same 
requirement  as  to  judges  and  the  same  procedure  as  to  expedi- 
tion and  appeal  shall  apply. 

Third  part  of  paragraph  3  of  the  Section  of  act  Oct.  22,  1913. 

The  provision  of  the  former  law  proviso  to  paragraph  12  of 
Section  16  of  the  Act  to  Regulate  Commerce  read: 

Provided,  That  no  injunction,  interlocutory  order  or  decree 
suspending  or  restraining  the  enforcement  of  an  order  of  the 
Commission  shall  be  granted  except  on  hearing  after  not  less 
than  five  days'  notice  to  the  Commission.  An  appeal  may  be 
taken  from  any  interlocutory  order  or  decree  granting  or  con- 
tinuing an  injunction  in  any  suit,  but  shall  lie  only  to  the  Supreme 
Court  of  the  United  States:  Provided  further.  That  the  ap- 
peal must  be  taken  within  thirty  days  from  the  entry  of  such 
order  or  decree  and  it  shall  take  precedence  in  the  appellate  court 
over  all  other  causes,  except  causes  of  like  character  and  criminal 
causes. 

Proviso  of  paragraph  twelve  of  section  sixteen. 

Preliminary  injunction  denied.  Delaware,  L.  &  W.  R.  Co.  z'. 
Int.  Com.  Com.,  155  Fed.  512;  So.  Pac.  Ter.  Co.  v.  Int.  Com. 
Com.,  166  Fed.  134.  Preliminary  injunction  granted.  Dela- 
ware, L.  &  W.  R.  Co.  V.  Int.  Com.  Com.,  166  Fed.  498;  Dela- 
ware, L.  &  W.  R.  Co.  V.  Int.  Com.  Com.,  166  Fed.  499.  In  the 
last  named  case,  under  the  peculiar  facts  and  at  the  request  of 
the  Commission,  shipper  allowed  to  intervene.     169  Fed.  894. 


660  Acts  Regui.ating  Commerce,  [§  466. 

See  Missouri  River  Rate  case  (C.  R.  I.  &  P.  R.  Co.  v.  Int.  Com. 
Com.),  171  Fed.  680. 

Amended  section  cited  as  a  reason  why  temporary  restraining 
orders  might  with  propriety  be  granted  where  danger  of  irre- 
parable injury  exists.  Louisville  &  N.  R.  Co.  v.  U.  S.,  238  U.  S. 
1,  59  L.  Ed.  —  35  Sup.  Ct.  696. 

§  466.  Appeals  from  Final  Judgments. — A  final  judgment 
or  decree  of  the  district  court  may  be  reviewed  by  the  Supreme 
Court  of  the  United  States  if  appeal  to  the  Supreme  Court  be 
taken  by  and  aggrieved  party  within  sixty  days  after  the  entry 
of  such  final  judgment  or  decree,  and  such  appeals  may  be 
taken  in  like  manner  as  appeals  are  taken  under  existing  law  in 
equity  cases.  And  in  such  case  the  notice  required  shall  be 
served  upon  the  defendants  in  the  case  and  upon  the  Attorney- 
General  of  the  state. 

Fourth  part  of  paragraph  3  of  Section  of  act  Oct.  22,  1913. 
The  provision  of  the  former  law,  paragraph  11  of  Section  16  of 
Act  to  Regulate  Commerce  read : 

From  any  action  upon  such  petition  an  appeal  shall  lie  by 
either  party  to  the  Supreme  Court  of  the  United  States,  and  in 
such  court  the  case  shall  have  priority  in  hearing  and  determina- 
tion over  all  other  cases  except  criminal  cases,  but  such  ap- 
peal shall  not  vacate  or  suspend  the  order  appealed  from. 

§  467.  Pending-  Causes  Transferred  to  District  Courts. — 
All  cases  pending  in  the  commerce  court  at  the  date  of  the  pas- 
sage of  this  act  shall  be  deemed  pending  in  and  be  transferred 
forthwith  to  said  district  courts  except  cases  which  may  pre- 
viously have  been  submitted  to  that  court  for  final  decree  and 
the  latter  to  be  transferred  to  the  district  courts  if  not  decided 
by  the  commerce  court  before  December  first,-  nineteen  hundred 
and  thirteen,  and  all  cases  wherein  injunctions  or  other  orders 
or  decrees,  mandatory  or  otherwise,  have  been  directed  or  entered 
prior  to  the  abolition  of  the  said  court  shall  be  transferred  forth- 
with to  said  district  courts,  which  shall  have  jurisdiction 
to  proceed  therewith  and  to  enforce  said  injunctions,  orders,  or 
decrees.  Each  of  said  cases  and  all  the  records,  papers,  and  pro- 
ceedings shall  be  transferred  to  the  district  court  \vherein  it 
might  have  been  filed  at  the  time  it  was  filed  in  the  commerce 
court  if  this  act  had  then  been  in  efifect ;  and  if  it  might  have 
been  filed  in  any  one  of  two  or  more  district  courts  it  shall  be 
transferred  to  that  one  of   said  district  courts   which   may  be 


§  468.]  Annotated.  661 

designated  by  the  petitioner  or  petitioners  in  said  case,  or,  upon 
failure  of  said  petitioners  to  act  in  the  premises  within  thirty  days 
after  the  passage  of  this  act,  to  such  one  of  said  district  courts 
as  may  be  designated  by  the  judges  of  the  commerce  court.  The 
judges  of  the  commerce  court  shall  have  authority,  and  are  here- 
by directed,  to  make  any  and  all  orders  and  to  take  any  other 
action  necessary  to  transfer  as  aforesaid  the  cases  and  all  the 
records,  papers,  and  proceedings  then  pending  in  the  commerce 
court  to  said  district  courts.  All  administrative  books,  dockets, 
files,  and  all  papers  of  the  commerce  court  not  transferred  as 
part  of  the  record  of  any  particular  case  shall  be  lodged  in  the 
Department  of  Justice.  All  furniture,  carpets,  and  other  prop- 
erty of  the  commerce  court  is  turned  over  to  the  Department 
of  Justice  and  the  Attorney-General  is  authorized  to  supply  such 
portion  thereof  as  in  his  judgment  may  be  proper  and  necessary 
to  the  United  States  Board  of  Mediation  and  Conciliation. 

Any  case  hereafter  remanded  from  the  Supreme  Court  which, 
but  for  the  passage  of  this  act,"  would  have  been  remanded 
to  the  commerce  court,  shall  be  remanded  to  a  district  court, 
designated  by  the  Supreme  Court,  wherein  it  might  have  been 
instituted  at  the  time  it  was  instituted  in  the  commerce  court  if 
this  act  had  then  been  in  effect,  and  thereafter  such  district 
court  shall  take  all  necessary  and  proper  proceedings  in  such 
case  in  accordance  with  law  and  such  mandate,  order,  or  de- 
cree therein  as  may  be  made  by  said  Supreme  Court.  All  laws 
or  parts  of  laws  inconsistent  with  the  foregoing  provisions  relat- 
ing to  the  Commerce  Court,  are  repealed. 

§  468.  Certain  Cases  Given  Precedence  and  Hearing  Ex- 
pedited. Hearing  before  Three  Judges. — That  in  any  suit  in 
equity  pending  or  hereafter  brought  in  any  circuit  court  of  the 
United  States  under  the  act  entitled  "An  act  to  protect  trade  and 
commerce  against  unlawful  restraints  and  monopolies,"  approved 
July  second,  eighteen  hundred  and  ninety,  "An  act  to  regulate 
commerce,"  approved  February  fourth,  eighteen  hundred  and 
eighty-seven,  or  any  other  acts  having  a  like  purpose  that  here- 
after may  be  enacted,  wherein  the  United  States  is  complainant, 
the  Attorney-General  may  file  with  the  clerk  of  such  court  a 
certificate  that,  in  his  opinion,  the  case  is  of  general  public  im- 
portance, a  copy  of  which  shall  be  immediately  furnished  by  such 
clerk  to  each  of  the  circuit  judges  of  the  circuit  in  which  the 
case  is  pending.    Thereupon  such  case  shall  be  given  precedence 


662  Acts  Regulating  Commerce,  [§  468. 

over  others  and  in  every  way  expedited,  and  be  assigned  for 
hearing  at  the  earliest  practicable  day,  before  not  less  than 
three  of  the  circuit  judges  of  said  court,  if  there  be  three  or 
more;  and  if  there  be  not  more  than  two  circuit  judges,  then 
before  them  and  such  district  judge  as  they  may  select;  or,  in 
case  the  full  court  shall  not  at  any  time  be  made  up  by  reason 
cf  the  necessary  absence  or  disqualification  of  one  or  more  of  the 
said  circuit  judges,  the  justice  of  the  Supreme  Court  assigned 
to  that  circuit  or  the  other  circuit  judge  or  judges  may  designate  a 
district  judge  or  judges  within  the  circuit  who  shall  be  competent 
to  sit  in  said  court  at  the  hearing  of  said  suit.  In  the  event  the 
judges  sitting  in  such  case  shall  be  equally  divided  in  opinion  as 
to  the  decision  or  disposition  of  said  cause,  or  in  the  event  that 
a  majority  of  said  judges  shall  be  unable  to  agree  upon  the  judg- 
ment, order,  or  decree  finally  disposing  of  said  case  in  said 
court  which,  should  be  entered  in  said  cause,  then  they  shall 
immediately  certify  that  fact  to  the  Chief  Justice  of  the  United 
States,  who  shall  at  once  designate  and  appoint  some  circuit 
judge  to  sit  with  said  judges  and  to  assist  in  determining  said 
cause.  Such  order  of  the  Chief  Justice  shall  be  immediately 
transmitted  to  the  Clerk  of  the  circuit  court  in  which  said  cause 
is  pending,  and  shall  be  entered  upon  the  minutes  of  said  court. 
Thereupon  said  cause  shall  at  once  be  set  down  for  reargument 
and  the  parties  thereto  notified  in  writing  by  the  clerk  of  said 
court  of  the  action  of  the  court  and  the  date  fixed  for  the  re- 
argument  thereof.  The  provisions  of  this  section  shall  apply 
to  all  causes  and  proceedings  in  all  courts  now  pending,  or  which 
may  hereafter  be  brought. 

Section  1  of  act  of  Feb.  11,  1903,  known  as  the  Expediting 
Act  as  amended  by  the  act  of  June  25,  1910.  The  second  part 
of  paragraph  12  of  Sec.  16  of  the  Act  to  Regulate  Commerce  as 
amended  by  the  Act  of  1906  read : 

The  provisions  of  "An  act  to  expedite  the  hearing  and  deter- 
mination of  suits  in  equity,  and  so  forth,"  approved  February 
eleventh,  nineteen  hundred  and  three,  shall  be,  and  are  hereby, 
made  applicable  to  all  such  suits,  including  the  hearing  on  an  ap- 
plication for  a  preliminary  injunction,  and  are  also  made  ap- 
plicable to  any  proceeding  in  equity  to  enforce  any  order  or  re- 
quirement of  the  Commission,  or  any  of  the  provisions  of  the  act 
to  regulate  commerce  approved  February  fourth,  eighteen  hun- 
dred and  eighty-seven,  and  all  acts  amendatory  thereof  or  sup- 


§  469.]  Annotated.  663 

plemental  thereto.  It  shall  be  the  duty  of  the  Attorney-General 
in  every  such  case  to  file  the  certificate  provided  for  in  said  ex- 
pediting act  of  February  eleventh,  nineteen  hundred  and  three, 
as  necessary  to  the  application  of  the  provisions  thereof,  and  up- 
on appeal  as  therein  authorized  to  the  Supreme  Court  of  the 
United  States,  the  case  shall  have  in  such  court  priority  in  hear- 
ing and  determination  over  all  other  causes  except  criminal 
causes. 

Second  part  of  paragraph  twelve  of  section  sixteen. 

When  two  of  the  three  circuit  judges  agree  case  will  not  be 
certified  to  the  Supreme  Court.  So.  Pac.  Ter.  Co.  v.  Int.  Com. 
Com.,  166  Fed.  134,  C.  C.  A. 

In  So.  Pac.  Ter.  Co.  v.  Int.  Com.  Com.,  166  Fed.  134,  the  sec- 
tion being  under  discussion,  the  court  of  appeals  for  the  Fifth 
Circuit,  Pardee,  Judge,  delivering  the  opinion,  said : 

"This  expediting  act,  fairly  construed,  permits  the  case  to 
proceed  (except  it  is  to  be  given  precedence  and  expedited) 
until  final  hearing  when  it  is  to  be  set  down  before  three  circuit 
judges.  After  final  decree  it  may  be  carried  within  60  days 
by  appeal  to  the  Supreme  Court  by  either  party,  and  the  only 
office  left  for  the  certificate  is  in  the  contingency  that  the  judges 
shall  be  unable  to  agree  on  a  final  decree. 

"We  can  find  nothing  further  in  the  acts  requiring  three  cir- 
cuit judges  to  sit  in  any  other  phases  of  the  case  than  the  hearing 
on  application  for  a  preliminary  injunction  and  on  the  final 
hearing.  To  apply  it  to  all  proceedings  in  the  case  is,  in  the 
nature  of  things  to  defeat  the  very  object  of  the  act,  and  change 
it  from  an  expediting  act  into  a  hindering  and  delaying  act." 

§  469.  Direct  Appeal  to  Supreme  Court. — That  every  suit 
in  equity  pending  or  hereafter  brought  in  any  circuit  court  of  the 
United  States  under  any  of  said  acts,  wherein  the  United  States 
is  complainant,  including  cases  submitted  but  not  yet  decided, 
an  appeal  from  the  final  decree  of  the  circuit  court  will  lie  only 
to  the  Supreme  Court  and  must  be  taken  within  sixty  days  from 
the  entry  thereof  •  Provided,  That  in  any  case  where  an  appeal 
may  have  been  fil-en  from  the  final  decree  of  a  circuit  court  to 
the  circuit  court  of  appeals  before  this  act  takes  efifect,  the  case 
shall  proceed  to  r-  final  decree  therein,  and  an  appeal  may  be 
taken  from  suci  d-^cree  to  the  Supreme  Court  in  the  manner 
now  provided  by  lav. 

Public  No.  82.  '-n.roved  February  11,  1903. 


664  Acts  Regulating  Commerce,  [§  470. 

Section  two  of  the  Expediting  Act,  act  February  11,  1893. 

A  direct  appeal  to  the  Supreme  Court  is  authorized  by  this 
section  from  a  final  decree  in  the  circuit  court  in  a  proceeding 
to  compel  the  production  of  testimony.  Int.  Com.  Com.  v.  Baird, 
194  U.  S.  25,  48  L.  Ed.  860,  24  Sup.  Ct.  563.  Appeal  taken 
from  the  circuit  court  to  the  Supreme  Court  from  an  order 
granting  a  preliminary  injunction  under  the  Sherman  Anti- 
Trust  Act.  Swift  &  Co.  V.  United  States,  196  U.  S.  375,  49  L. 
Ed.  518,  25  Sup.  Ct.  276;  Circuit  court  decree,  United  States 
V.  Swift  &  Co.,  122  Fed.  529. 

By  Section  289  of  the  Judicial  Code  circuit  courts  of  the 
United  States  are  abolished  and  district  courts  should  be  read 
where  circuit  courts  appear  in  the  section  relating  to  courts. 

§  470.  Government  Aided  Railroad  and  Telegraph  Lines. 
— That  all  railroad  apd  telegraph  companies  to  which  the  United 
States  has  granted  any  subsidy  in  lands  or  bonds  or  loan  of 
credit  for  the  construction  of  either  railroad  or  telegraph  lines, 
which,  by  the  acts  incorporating  them,  or  by  any  acts  amendatory 
or  supplementary  thereto,  are  required  to  construct,  maintain,  or 
operate  telegraph  lines,  and  all  companies  engaged  in  operating 
said  railroad  or  telegraph  lines  shall  forthwith  and  hencefor- 
ward, by  and  through  their  own  respective  corporate  officers  and 
employees,  maintain  and  operate,  for  railroad,  governmental, 
commercial,  and  all  other  purposes,  telegraph  lines,  and  exercise 
by  themselves  alone  all  the  telegraph  franchises  conferred  upon 
them  and  obligations  assumed  by  them  under  the  acts  making  the 
grants  as  aforesaid. 

Section  1,  act  of  Aug.  7,  1888  amending  act  of  July  1st,  1862. 

§  471.  Connecting-  Telegraph  Lines. — That  whenever  any 
telegraph  company  which  shall  have  accepted  the  provisions  of 
title  sixty-five  of  the  Revised  Statutes  shall  extend  its  line  to 
any  station  or  office  of  a  telegraph  line  belonging  to  anyone  of  said 
railroad  or  telegraph  companies,  referred  to  in  the  first  section 
of  this  act,  said  telegraph  company  so  extending  its  line  shall 
have  the  right  and  said  railroad  or  telegraph  company  shall  al- 
low the  line  of  said  telegraph  company  so  extending  its  line  to 
connect  with  the  telegraph  line  of  said  railroad  or  telegraph  com- 
pany to  which  it  is  extended  at  the  place  where  their  lines  may 
meet,  for  the  prompt  and  convenient  interchange  of  telegraph 
business  between  said  companies ;  and  such  railroad  and  tele- 
graph companies,  referred  to  in  the  first  section  of  this  act,  shall 


§  472.]  Annotated.  665 

so  operate  their  respective  telegraph  Hnes  as  to  afford  equal 
facilities  to  all,  without  discrimination  in  favor  of  or  against  any 
person,  company,  or  corporation  whatever,  and  shall  receive,  de- 
liver, and  exchange  business  with  connecting  telegraph  lines  on 
equal  terms,  and  affording  equal  facilities,  and  without  discrim- 
ination for  or  against  any  one  of  such  connecting  lines ;  and  such 
exchange  of  business  shall  be  on  terms  just  and  equitable. 

Section  2  of  act  of  August  7,  1888  amending  act  of  July  1, 
1862. 

§  472.  Duties  Imposed  on  Interstate  Commerce  Com- 
mission.— That  if  any  such  railroad  or  telegraph  company  re- 
ferred to  in  the  first  section  of  this  act  or  company  operating 
such  railroad  or  telegraph  line  shall  refuse  or  fail,  in -whole  or 
in  part,  to  maintain  and  operate  a  telegraph  line  as  provided  in 
this  act  and  acts  to  which  this  is  supplementary,  for  the  use  of 
the  Government  or  the  public,  for  commercial  and  other  pur- 
poses, without  discrimination,  or  shall  refuse  or  fail  to  make  or 
continue  such  arrangements  for  the  interchange  of  business 
with  any  connecting  telegraph  company,  then  any  person,  com- 
pany, corporation,  or  connecting  telegraph  company  may  ap- 
ply for  relief  to  the  Interstate  Commerce  Commission,  whose 
duty  it  shall  thereupon  be,  under  such  rules  and  regulations  as 
said  Commission  may  prescribe,  to  ascertain  the  facts,  and  de- 
termine and  order  what  arrangement  is  proper  to  be  made  in 
the  particular  case,  and  the  railroad  or  telegraph  company  con- 
cerned shall  abide  by  and  perform  such  order ;  and  it  shall  be 
the  duty  of  the  Interstate  Commerce  Commission,  when  such 
determination  and  order  are  made,  to  notify  the  parties  con- 
cerned, and,  if  necessary,  enforce  the  same  by  writ  of  mandamus 
in  the  courts  of  the  United  States,  in  the  name  of  the  United 
States,  at  the  relation  of  either  of  said  Interstate  Commerce  Com- 
missioners :  Provided,  That  the  said  Commissioners  may  institute 
any  inquiry,  upon  their  own  motion,  in  the  same  manner  and  to 
the  same  effect  as  though  complaint  had  been  made. 

Section  3  of  the  act  of  Aug.  7,  1888  amending  the  act  of  July 
1,  1862. 

§  473.  Duty  of  the  Attorney- General. — That  in  order  to 
secure  and  preserve  to  the  United  States  the  full  value  and  bene- 
fit of  its  liens  upon  all  the  telegraph  lines  required  to  be  constructed 
by  and  lawfully  belonging  to  said  railroad  and  telegraph  com- 
panies referred  to  in  the  first  section  of  this  act,  and  to  have  the 


666  Acts  Regulating  Commerce,  [§  474. 

same  possessed,  used,  and  operated  in  comformity  with  the  pro- 
visions of  this  act  and  of  the  several  acts  to  which  this  act  is 
supplementary,  it  is  hereby  made  the  duty  of  the  Attorney-Gen- 
eral of  the  United  States,  'by  proper  proceedings,  to  prevent  any 
unlawful  interference  with  the  rights  and  equities  of  the  United 
States  under  this  act,  and  under  the  acts  hereinbefore  mentioned, 
and  under  all  acts  of  Congress  relating  to  such  railroads  and  tel- 
egraph lines,  and  to  have  legally  ascertained  and  finaly  adjudi- 
cated all  alleged  rights  of  all  persons  and  corporations  whatever 
claiming  in  any  manner  any  control  or  interest  of  any  kind  in 
any  telegraph  lines  or  property,  or  exclusive  rights  of  way  upon 
the  lands  of  such  railroad  companies,  or  any  of  them,  and  to 
have  all  contracts  and  provisions  of  contracts  set  aside  and  an- 
nulled which  have  been  unlawfully  and  beyond  their  powers  en- 
tered into  by  said  railroad  or  telegraph  companies,  or  any  of 
them,  with  any  other  person,  company,  or  corporation. 

Section  4  of  the  act  of  Aug.  7 ,  1888.  Amending  the  act  of 
July  1,  1862. 

§  474.  Penalties  Provided. — That  any  officer  or  agent  of 
said  railroad  or  telegraph  companies,  or  of  any  company  operat- 
ing the  railroads  and  telegraph  lines  of  said  companies,  who  shall 
refuse  or  fail  to  operate  the  telegraph  lines  of  said  railroad  or 
telegraph  companies  under  his  control,  or  which  he  is  engaged  in 
operating,  in  the  manner  directed  in  this  act  and  by  the  acts  to 
which  it  is  supplementary,  or  who  shall  refuse  or  fail,  in  such 
operation  and  use,  to  afford  and  secure  to  the  government  and 
the  public  equal  facilities,  or  to  secure  to  each  of  said  connecting 
telegraph  lines  equal  advantages  and  facilities  in  the  interchange 
of  business,  as  herein  provided  for,  without  any  discrimination 
whatever  for  or  adverse  to  the  telegraph  line  of  any  or  either 
of  said  connecting  companies,  or  shall  refuse  to  abide  by,  or  per- 
form and  carry  out  within  a  reasonable  time  the  order  or  orders 
of  the  Interstate  Commerce  Commission,  shall  in  every  such  case 
of  refusal  or  failure  be  guilty  of  a  misdemeanor,  and,  on  convic- 
tion thereof,  shall  in  every  such  case  be  fined  in  a  sum  not  exceed- 
ing one  thousand  dollars,  and  may  be  imprisoned  not  less  than 
six  months ;  and  in  every  such  case  of  refusal  or  failure  the  party 
aggrieved  may  not  only  cause  the  officer  or  agent  guilty  thereof 
to  be  prosecuted  under  the  provisions  of  this  section,  but  may 
also  bring  an  action  for  the  damages  sustained  thereby  against 
the  company  whose  officer  or  agent  may  be  guilty  thereof,  in 


§  475.]  Annotated.  667 

the  circuit  or  district  court  of  the  United  States  in  any  State  or 
Territory  in  which  any  portion  of  the  road  or  telegraph  line  of 
said  company  may  be  situated;  and  in  case  of  suit  process  may 
be  served  upon  any  agent  of  the  company  found  in  such  State  or 
Territory,  and  such  service  shall  be  held  by  the  court  good  and 
sufficient. 

Section  5  of  the  act  of  Aug.  7,  1888  amending  the  act  of  July 
1,  1862. 

§  475.  Duty  of  Telegraph  and  Railroad  Companies  to 
File  Contracts  with  and  Make  Reports  to  Interstate  Com- 
merce Commission. — That  it  shall  be  the  duty  of  each  and 
every  one  of  the  aforesaid  railroad  and  telegraph  companies, 
within  sixty  days  from  and  after  the  passage  of  this  act,  to  file 
with  the  Interstate  Commerce  Commission  copies  of  all  con- 
tracts and  agreements  of  every  description  existing  between  it 
and  every  other  person  or  corporation  whatsoever  in  reference 
to  the  ownership,  possession,  maintenance,  control,  use,  or  op- 
eration of  any  telegraph  lines,  or  property  over  or  upon  its  rights 
of  way,  and  also  a  report  describing  with  sufficient  certainty  the 
telegraph  lines  and  property  belonging  to  it,  and  the  manner  in 
which  the  same  are  being  then  used  and  operated  by  it,  and  the  tel- 
egraph lines  and  property  upon  its  right  of  way  in  which  any 
other  person  or  corporation  claims  to  have  a  title  or  interest,  and 
setting  forth  the  grounds  of  such  claim,  and  the  manner  in  which 
the  same  are  being  then  used  and  operated ;  and  it  shall,  be  the 
duty  of  each  and  every  one  of  said  railroad  and  telegraph  com- 
panies annually  hereafter  to  report  to  the  Interstate  Commerce 
Commission,  with  reasonable  fullness  and  certainty,  the  nature, 
extent,  value,  and  condition  of  the  telegraph  lines  and  property 
'  then  belonging  to  it,  the  gross  earnings,  and  all  expenses  of  main- 
tenance, use,  and  operation  thereof,  and  its  relation  and  business 
with  all  connecting  telegraph  companies  during  the  preceding 
year,  at  such  time  and  in  such  manner  as  may  be  required  by  a 
system  of  reports  which  said  Commission  shall  prescribe ;  and  if 
any  of  said  railroad  or  telegraph  companies  shall  refuse  or  fail 
to  make  such  reports  or  any  report  as  may  be  called  for  by  said 
Commission  or  refuse  to  submit  its  books  and  records  for  inspec- 
tion, such  neglect  or  refusal  shall  operate  as  a  forfeiture,  in  each 
case  of  such  neglect  or  refusal,  of  a  sum  not  less  than  one  thou- 
sand dollars  nor  more  than  five  thousand  dollars,  to  be  recovered 
by  the  Attorney-General  of  the  United  States,  in  the  name  and 


668  Acts  Regulating  Commerce,  [§  476. 

for  the  use  and  benefit  of  the  United  States ;  and  it  shall  be  the 
duty  of  the  Interstate  Commerce  Commission  to  inform  the  At- 
torney-General of  all  such  cases  of  neglect  or  refusal,  whose 
duty  it  shall  be  to  proceed  at  once  to  judicially  enforce  the  for- 
feitures hereinbefore  provided. 

Section  6  of  the  act  of  Aug.  7,  1888  amending  the  act  of  July 
1,  1862. 

§  476.  Right  of  Congress  to  Alter  or  Annul  This  Act. — 
That  nothing  in  this  act  shall  be  construed  to  affect  or  impair  the 
right  of  Congress,  at  any  time  hereafter,  to  alter,  amend,  or  re- 
peal the  said  acts  hereinbefore  mentioned;  and  this  act  shall  be 
subject  to  alteration,  amendment,  or  repeal  as,  in  the  opinion  of 
Congress  justice  or  the  public  welfare  may  require ;  and  nothing 
herein  contained  shall  be  held  to  deny,  exclude,  or  impair  any 
right  or  remedy  in  the  premises  now  existing  in  the  United 
States,  or  any  authority  that  the  Postmaster  General  now  has 
under  title  sixty-five  of  the  Revised  Statutes  to  fix  rates,  or,  of 
the  Government,  to  purchase  lines  as  provided  under  said  title,  or 
to  have  its  messages  given  precedence  in  transmission. 

Public,  No.  237,  approved  August  7,  1888. 

Section  7  of  the  act  of  Aug.  7,  1888  amending  the  act  of  July 
L  1862. 

The  act  of  July  1,  1862,  12  Stat.  489,  chap.  120,  Sec.  6,  cited 
as  to  right  of  government  to  fair  and  reasonable  rates.  So.  Pac. 
Co.  V.  U.  S..  237  U.  S.  202.  59  L.  Ed. .  35  Sup.  Ct.  573. 

§  477.  Lake  Erie  &  Ohio  River  Ship  Canal.— Sec.  17.  That 
the  said  canals  shall  be  open  to  the  use  and  navigation  of  all 
suitable  and  proper  vessels  or  other  water  craft,  by  whomsoever 
owned  or  operated,  upon  fair  and  equal  terms,  conditions,  rates, 
tolls,  and  charges ;  and  the  said  company  may  demand,  take,  and 
recover  for  its  own  proper  use,  for  all  persons  and  things  of 
whatsoever  description  transported  upon  the  said  canals,  feeders, 
and  other  works,  or  in  vessels  and  craft  using  the  same,  just  and 
reasonable  charges,  rates,  and  tolls ;  but  all  such  charges,  rates, 
and  tolls  shall  be  equal  to  all  persons,  vessels,  and  goods  under 
certain  classifications  to  be  established  by  the  company  and  ap- 
proved by  the  Interstate  Commerce  Commission ;  and  no  rebate, 
reduction,  drawback,  or  discrimination  of  any  sort  on  such 
charges,  rates,  and  tolls  shall  ever  be  made  directly  or  indirectly. 
And  the  said  charges,  rates,  and  tolls  for  the  ensuing  year  shall 
be  fixed,  published,  and  posted  on  or  in  every  place  where  they 


§  478.]  Annotated.  669 

are  to  be  collected,  on  or  before  the  fifteenth  day  of  February 
of  each  year,  and  shall  not  be  changed  except  after  thirty  days' 
public  notice,  which  notice  shall  plainly  state  the  changes  pro- 
posed to  be  made  in  the  charges,  rates,  and  tolls  then  in  force  and 
the  time  when  the  changed  charges,  rates  and  tolls  will  go  into 
effect ;  and  the  proposed  changes  shall  be  shown  by  printing  new 
schedules  or  shall  be  plainly  indicated  upon  the  schedules  in  force 
at  the  time  and  kept  open  to  public  inspection  :  Provided,  That  the 
Interstate  Commerce  Conimission  may,  in  its  discretion  and  for 
good  cause  shown,  allow  changes  upon  less  notice  than  herein 
specified  or  modify  the  foregoing  recjuirements  in  respect  to  pub- 
lishing and  posting  of  such  schedules,  either  in  particular  in- 
stances or  by  a  general  order  applicable  to  special  or  peculiar 
circumstances  or  conditions. 

Public,  No.  402,  approved  June  30,  1906. 

§  478.  Parcel  Post. — The  classification  of  articles  mailable 
as  well  as  the  weight  limit,  the  rates  of  postage,  zone  or  zones 
and  other  conditions  of  mailability  under  this  act,  if  the  Post- 
master General  shall  find  on  experience  that  they  or  any  of  them 
are  such  as  to  prevent  the  shipment  of  articles  desirable,  or  to 
permanently  render  the  cost  of  the  service  greater  than  the  re- 
ceipts of  the  revenue  therefrom,  he  is  hereby  authorized,  subject 
to  the  consent  of  the  Interstate  Commerce  Commission  after  in- 
vestigation, to  reform  from  time  to  time  such  classification,  weight 
limit,  rates,  zone  or  zones  or  conditions,  or  either,  in  order  to  pro- 
mote the  service  to  the  public  or  to  insure  the  receipt  of  revenue 
from  such  service  adequate  to  pay  the  cost  thereof. 

An  act  making  appropriations  for  the  service  of  the  Post 
Office  Department  for  the  fiscal  year  ending  June  thirtieth,  nine- 
teen hundred  and  thirteen,  and  for  other  purposes. 

Public,  No.  336,  approved  August  24,  1912. 

§  479.  Compulsory  Attendance  of  Witnesses  and  Pro- 
duction of  Papers  Provided  for. — Be  it  enacted  by  the  Senate 
and  House  of  Representatives  of  the  United  States  of  America 
in  Congress  assembled,  That  no  person  shall  be  excused  from  at- 
tending and  testifying  or  from  producing  books,  papers,  tariffs, 
contracts,  agreements  and  documents  before  the  Interstate  Com- 
merce Commission,  or  in  obedience  to  the  subpoena  of  the  Com- 
mission, whether  such  subpcena  be  signed  or  issued  by  one  or 
more  Commissioners,  or  in  any  cause  or  proceeding,  criminal  or 


670  Acts  Regulating  Commerce,  [§  480. 

otherwise,  based  upon  or  growing  out  of  any  alleged  violation  of 
the  act  of  Congress,  entitled  "An  act  to  regulate  commerce,"  ap- 
proved February  fourth,  eighteen  hundred  and  eighty-seven,  or 
of  any  amendment  thereof  on  the  ground  or  for  the  reason  that 
the  testimony  or  evidence,  documentary  or  otherwise,  required 
of  him,  may  tend  to  criminate  him  or  subject  him  to  a  penalty  or 
forfeiture.  But  no  person  shall  be  prosecuted  or  subjected  to 
any  penalty  or  forfeiture  for  or  on  account  of  any  transaction, 
matter  or  thing,  concerning  which  he  may  testify,  or  produce 
evidence,  documentary  or  otherwise,  before  said  Commission,  or 
in  obedience  to  its  subpoena,  or  the  subpoena  of  either  of  them, 
or  in  any  such  case  or  proceeding:  Provided,  That  no  person 
so  testifying  shall  be  exempt  from  prosecution  and  punishment 
for  perjury  committed  in  so  testifying. 

Any  person  who  shall  neglect  or  refuse  to  attend  and  testify, 
or  to  answer  any  lawful  inquiry,  or  to  produce  books,  papers, 
tariffs,  contracts,  agreements,  and  documents,  if  in  his  power  to 
do  so,  in  obedience  to  the  subpoena  or  lawful  requirement  of  the 
Commission,  shall  be  guilty  of  an  offense  and  upon  conviction 
thereof  by  a  court  of  competent  jurisdiction  shall  be  punished  by 
fine  not  less  than  one  hundred  dollars  nor  more  than  five  thou- 
sand dollars,  or  by  imprisonment  for  not  more  than  one  year  or 
by  both  such  fine  and  imprisonment. 

Act  of  February  11,  1893. 

§  480.  Amendment  to  Act  Making  Compulsory  Attend- 
ance of  Witnesses  and  Production  of  Papers. — Be  it  enacted 
by  the  Senate  and  House  of  Representatives  of  the  United  States 
of  America  in  Congress  assembled.  That  under  the  immunity 
provisions  in  the  act  entitled  "An  act  in  relation  to  testimony 
before  the  Interstate  Commerce  Commission,"  and  so  forth,  ap- 
proved February  eleventh,  eighteen  hundred  and  ninety-three,  in 
section  six  of  the  act  entitled  "An  act  to  establish  the  Depart- 
ment of  Commerce  and  Labor,"  approved  February  fourteenth, 
nineteen  hundred  and  three,  and  in  the  act  entitled  "An  act  to 
further  regulate  commerce  with  foreign  nations  and  among  the 
states,"  approved  February  nineteenth,  nineteen  hundred  and 
three,  and  in  the  act  entitled  "An  act  making  appropriations  for 
the  legislative,  executive,  and  judicial  expenses  of  the  govern- 
ment for  the  fiscal  year  ending  June  thirtieth,  nineteen  hundred 
and  four,  and  for  other  purposes,"  approved  February  twenty- 


§  480.]  Annotated.  671 

fifth,  nineteen  hundred  and  three,  immunity  shall  extend  only 
to  a  natural  person  who,  in  obedience  to  a  subpoena,  gives  testi- 
mony under  oath  or  produces  evidence,  documentary  or  other- 
wise, under  oath. 

Public  No.  389,  approved  June  30,  1906. 

Act  June  30,  1906. 


CHAPTER  X. 

Acts  Relating  to  the  Transportation  of  Animals. 

Act  to  prevent  cruelty  to  animals  while  in  interstate  transit,  known 
as  the  28-hour  law,  Act  June  29,  1906,  Chapter  3594,  34  Stat.  L.  607, 
U.  S.   Comp.  St.  Supp.   1907,  p.  918,  Fed.  Stat.  Ann.   Sup.   1907,  p.  25. 

Act  March  4,  1907,  Chapter  2907,  34  Stat.  L.  1260  et  seq.,  requiring 
inspection  of  meat. 

Act  March  3,  1905,  33  Stat.  L.  1264,  Ch.  1496,  U.  S.  Comp.  St.  Supp. 
1909,  p.  1185,  relating  to  transportation  of  animals  from  quarantine 
territory. 

§  481.     Time    Prescribed    for    Feeding    and    Unloading    Animals     in 
Transit. 

482.  Feeding  Shall  Be  at  Expense  of  Owner,  Lien  Given  for  Food. 

483.  Penalty. 

484.  Meat  Inspection  Act. 

485.  Transportation  of  Animals  from  Quarantine  Territory. 

§  481.  Time  Prescribed  for  Feeding  and  Unloading  Ani- 
mals in  Transit. — That  no  railroad,  express  company,  car  com- 
pany, common  carrier  other  than  by  water,  or  the  receiver,  trus- 
tee, or  lessee  of  any  of  them,  whose  road  forms  any  part  of  a 
line  of  road  over  which  cattle,  sheep,  swine,  or  other  animals 
shall  be  conveyed  from  one  state  or  territory  or  the  District  of 
Columbia  into  or  through  another  state  or  territory  or  the  Dis- 
trict of  Columbia,  or  the  owners  or  masters  of  steam,  sailing,  or 
other  vessels  carrying  or  transporting  cattle,  sheep,  swine,  or 
other  animals  from  one  state  or  territory  or  the  District  of  Col- 
umbia into  or  through  another  state  or  territory  or  the  District 
of  Columbia,  shall  confine  the  same  in  cars,  boats  or  vessels  of 
any  description  for  a  period  longer  than  twenty-eight  consecutive 
hours  without  unloading  the  same  in  a  humane  manner,  into 
properly  equipped  pens  for  rest,  water,  and  feeding,  for  a  period 
of  at  least  five  consecutive  hours,  unless  prevented  by  storm  or 
by  other  accidental  or  unavoidable  causes  which  can  not  be  antic- 
ipated or  avoided  by  the  exercise  of  due  diligence  and  foresight : 
Provided,  That  upon  the  written  request  of  the  owner  or  person 
in  custody  of  that  particular  shipment,  which  written  request 
shall  be  separate  and  apart  from  any  printed  bill  of  lading,  or 

672 


< 


§  481.]  Transportation  of  Animals.  673 

other  railroad  form,  the  time  of  confinement  may  be  extended  to 
thirty-six  hours.  In  estimating  such  confinement,  the  time  con- 
sumed in  loading  and  unloading  shall  not  be  considered,  but  the 
time  during  which  the  animals  have  been  confined  without  such 
rest  or  food  or  water  on  connecting  roads  shall  be  included,  it 
being  the  intent  of  this  act  to  prohibit  their  continuous  confine- 
ment beyond  the  period  of  twenty-eight  hours,  except  upon  the 
contingencies  hereinbefore  stated :  Provided,  That  it  shall  not 
be  required  that  sheep  be  unloaded  in  the  nighttime,  but  where 
the  time  expires  in  nighttime  in  case  of  sheep  the  same  may  con- 
tinue in  transit  to  a  suitable  i:)lace  for  unloading,  subject  to  the 
aforesaid  limitation  of  thirty-six  hours. 

Section  one  of  the  act. 

The  act  of  March  3,  1873,  17  Stat.  L.  584,  R.  S.  U.  S.  §§  4386 
to  4390,  inclusive,  had  the  same  purpose,  though  was  somewhat 
less  comprehensive  than  the  present  law. 

The  old  law,  and  for  that  matter  the  present  law,  did  not 
apply  to  transportation  wholly  within  a  state.  United  States 
V.  East  Tenn.,  Va.  &  Ga.  R.  Co.,  13  Fed.  642.  The  statute  con- 
stitutional.' United  States  v.  Boston  &  A.  R.  Co.,  15  Fed.  209. 
Reason  for  the  law  stated.  United  States  v.  L.  &  N.  R.  Co.,  18 
Fed.  480.  Accident  to  a  train  due  to  negligence  of  the  carrier 
not  excuse,  the  present  law  is  dififerent  in  this  respect,  but  the 
decision  would  probably  apply  to  the  law  now.  Newport  N.  & 
M.  V.  R.  Co.  V.  United  States,  61  Fed.  488,  9  C.  C.  A.  579.  The 
same  rule  was  applied  United  States  v.  So.  Pac.  Co.,  157  Fed. 
459;  followed  holding  that  proof  need  only  be  by  a  preponder- 
ance of  the  evidence,  same  style  case,  162  Fed.  412.  Opposite 
rule  adopted  United  States  v.  Louisville  &  N.  R.  Co.,  157  Fed. 
979.  The  rule  that  action  civil  affirmed.  Montana  C.  Ry.  Co. 
V.  United  States,  164  Fed.  400,  90  C.  C.  A.  388.  Under  the 
old  law  a  receiver  was  not  liable,  he  is  expressly  named  in  the 
present  law.  United  States  v.  Harris,  85  Fed.  533.  Affirmed, 
same  style  case,  177  U.  S.  305,  44  L.  Ed.  780,  20  Sup.  Ct.  609. 
A  complaint  for  penalties  must  charge  that  the  neglect  was  wil- 
ful, though  need  not  negative  exceptions.  Action  civil  not  crim- 
inal. United  States  v.  Oregon  Short  L.  R.  Co.,  160  Fed.  526. 
"Knowingly  and  wilfully"  defined.  Terminal  railroad  within 
act.  United  States  v.  Sioux  City  Stock  Yards  Co.,  162  Fed. 
556.      Affirmed    without    discussing    questions    involved,    same 


674  Acts  Rkgulatixg  [§  481. 

style  case,  167  Fed.  126.  Act  constitutional.  United  States  v. 
Oregon  R.  &  Xav.  Co.,  163  Fed.  640.  Objections  to  allegation 
must  be  taken  before  verdict;  action  civil;  wilful  does  not  mean 
an  evil  intent  but  a  violation  purposely.  Xew  York  C.  &  H.  R. 
R.  Co.  V.  United  States,  165  Fed.  833,  91  C.  C.  A.  519. 

"Knowingly  and  wilfully"  defined.  United  States  v.  Union 
Pacific  R.  Co.,  169  Fed.  65,  94  C.  C.  A.  433 ;  St.  Louis  &  S.  F. 
Ry.  Co.  V.  United  States,  169  Fed.  69,  94  C.  C.  A.  437;  Wis- 
consin Cent.  Ry.  Co.  v.  United  States,  169  Fed.  76,  94  C.  C.  A. 
444. 

Notes  of  Decisions  Rendered  Since  1909, 

Xot  a  criminal  statute  subject  to  the  strict  rules  of  construc- 
tion applied  in  criminal  prosecutions.  Montana  C.  Ry.  Co. 
V.  U.  S.,  164  Fed.  400,  90  C.  C.  A.  388.  No  defense  that  animals 
detained  beyond  the  statutory  limit  because  of  "oversight,  for- 
getfulness  and  unintentional  neglect"  of  an  employee. 

Provisions  relating  to  sheep  not  fatally  defective  for  un- 
certainty. So.  Pac.  Co.  V.  U.  S.,  171  Fed.  360,  96  C.  C.  A. 
252.  Owner's  request  to  extend  period  to  2>(i  hours  must  be 
written  and  for  each  shipment,  "contingencies  hereinbefore 
stated"  defined,  U.  S.  %'.  Pere  Marquette  R.  Co.,  171  Fed.  586. 
No  particular  kind  of  ecjuipment  prescribed.  U.  S.  v.  St.  Louis, 
I.  M.  &  S.  Ry.  Co.,  177  Fed.  205,  101  C.  C.  A.  365.  Applica- 
tion for  extension  may  be  printed  or  stamped,  made  before  the 
transportation  commences,  and  may  be  made  by  an  agent  and 
on  a  form  furnished  by  the  carrier.  Wabash  R.  Co.  v.  U.  S., 
178  Fed.  5,  101  C.  C.  A.  133  :  Atchison.  T.  &  S.  F.  Ry.  Co.  v. 
U.  S.,  178  Fed.  12,  101  C.  C.  A.  140;  Missouri,  K.  &  T.  Ry.  Co. 
V.  U.  S.,  178  Fed.  15,  101  C.  C.  A.  143.  A  terminal  company  re- 
ceiving horses  which  have  been  kept  confined  for  more  than  1'^ 
hours  and  delivering  them  for  a  short  distance  did  not  violate 
the  statute.  Northern  Pac.  T.  Co.  v.  U.  S..  184  Fed.  603,  106 
C.  C.  A.  583;  U.  S.  v.  Chicago  J.  Ry.  Co.,  211  Fed.  724.  Sheep 
may  not  be  detained  more  than  36  hours  in  any  case.  U.  v^.  v. 
Atchison,  T.  &  S.  F.  Ry.  Co.,  185  Fed.  105,  107  C.  C.  A.  2^11. 
Terminal  stock  yards  railroad  subject  to  provision  of  act.  St. 
Joseph  Stock  Yards  Co.  v.  U.  S.,  187  Fed.  104,  110  C.  C.  A.  432; 
See  note  110  C.  C.  A.  435.  The  statute  applies  when  the  ship- 
ment passes  through  a  foreign  country.  Lehigh  Valley  R.  Co.  v. 
U.  S.,  187  Fed.  1006.  109  C.  C.  A.  211,  affirming  U.  S.  v.  Le- 


§  482.]  Transportation  of  Animals.  675 

high  \\  R.  Co.,  184  'Fed.  971.  Not  sufficient  to  show  that  food, 
rest,  etc.,  could  have  been  had ;  must  show  that  they  were  fur- 
nished. Chicago,  B.  &  Q.  R.  Co.  v.  U.  S.,  195  Fed.  241,  115  C. 
C.  A.  193.  affirming  U.  S.  z'.  C.  B.  &  Q.  R.  Co.,  184  Fed.  984. 
That  there  is  room  to  enable  the  cattle  to  lie  down  does  not 
except  the  movement  from  the  provision  of  the  statute.  Erie  R. 
Co.  7'.  U.  S.,  200  Fed.  406,  affirming  U.  S.  v.  Erie  R.  Co.,  191 
Fed.  941.  No  willful  violation.  U.  S.  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  211  Fed.  770.  Initial  carrier  liable  here  for  acts  of  its 
agent  the  terminal  carrier.  U.  S.  v.  Union  Pac.  R.  Co.,  213  Fed. 
332,  C.  C.  A.  .  The  responsibility  of  the  carrier  con- 
tinues until  delivery  is  completed.  U.  S.  v.  Philadelphia  &  R. 
Ry.  Co..  223  Fed.  202,  206.  207. 

§  482.  Feeding  Shall  Be  at  Expense  of  Owner,  Lien 
Given  for  Food. — That  animals  so  unloaded  shall  be  properly 
fed  and  watered  during  such  rest,  either  by  the  owner  or  person 
having  the  custody  thereof,  or,  in  case  of  his  default  in  so 
doing,  then  by  the  railroad,  express  company,  car  company,  com- 
mon carrier  other  than  by  water,  or  the  receiver,  trustee,  or 
lessee  of  any  of  them,  or  by  the  owners  or  masters  of  boats  or 
vessels  transporting  the  same,  at  the  reasonable  expense  of  the 
owner  or  person  in  custody  thereof,  and  such  railroad,  express 
company,  car  company,  common  carrier  other  than  by  water,  re- 
ceiver, trustee,  or  lessee  of  any  of  them,  owners  or  masters,  shall 
in  such  case  have  a  lien  upon  such  animals  for  food,  care  and 
custody  furnished,  collectible  at  their  destination  in  the  same 
manner  as  the  transportation  charges  are  collected,  and  shall 
not  be  liable  for  any  detention  of  such  animals,  when  such  de- 
tention is  of  reasonable  duration,  to  enable  compliance  with  sec- 
tion one  of  this  act;  but  nothing  in  this  section  shall  be  con- 
strued to  prevent  the  owner  or  shipper  of  animals  from  furnish- 
ing food  therefor,  if  he  so  desires. 

Section  two  of  the  act. 

§  483.  Penalty. — That  any  railroad,  express  com])any.  car 
company,  common  carrier  other  than  by  water,  or  the  receiver, 
trustee,  or  lessee  of  any  of  them,  or  the  master  or  owner  of  any 
steam,  .sailing,  or  other  vessel  who  knowingly  and  willfully  fails 
to  comply  with  the  ])rovisions  of  the  two  ])receding  sections  shall 
for  every  such  failure  be  lialjle  for  and  forfeit  and  ])ay  a  pen- 
alty of  not  less  than  one  hundred  nor  more  than  five  hundred 


676  Acts  Regulating  [§  484, 

dollars :  Provided,  That  when  animals  are  carried  in  cars,  boats, 
or  other  vessels  in  which  they  can  and  do  have  proper  food, 
water,  s])ace,  and  opportunity  to  rest  the  provisions  in  regard  to 
their  being  unloaded  shall  not  apply. 

Section  three  of  the  act. 

A  penalty  can  not  be  assessed  for  each  animal.  United  States 
V.  Boston  &  A.  R.  Co..  15  Fed.  209.  The  penalty  should  be 
assessed  on  each  train  load.  United  States  f.  St.  Louis  &  S.  F. 
R.  Co.,  107  Fed.  870.  The  shipper  may  recover  his  damages  un- 
affected by  the  act.  Southern  Pac.  Co.  r.  Arnett,  126  Fed.  75, 
61  C.  C.  A.  131.  Where  there  are  several  shipments  in  the 
same  train,  each  shipment  constitutes  a  separate  case  upon  which 
for  a  violation  of  the  act  the  penalty  may  be  recovered.  United 
States  z'.  Bal.  &  O.  S.  VV.  R.  Co.,  159  Fed.  33,  86  C.  C.  A.  223; 
United  States  v.  New  York  C.  &  H.  R.  R.  Co..  168  Fed.  699,  94 
C.  C.  A.  76..  See  to  same  effect.  United  States  z'.  Atchison,  T. 
&  S.  F.  Ry.  Co.,  166  Fed.  160.  Must  show  that  carrier  "know- 
ingly and  wilfully"  confined  the  animals  longer  than  twenty- 
eight  hours,  the  government  need  not  negative  exceptions,  and 
confinement  in  hands  of  connecting  carrier  is  counted.  United 
States  z'.  Oregon  S.  L.  R.  Co.,  160  Fed.  526.  Action  for  penalty 
a  civil  suit,  §  590  supra. 

Notes  of  Decisions  Rendered  Since  1909. 

A  penalty  for  each  loading  and  not  for  each  car  where  more 
than  one  car  loaded  at  same  time.  Baltimore  &  O.  R.  Co.  z'. 
U.  S.,  220  U.  S.  94,  55  L.  Ed.  384,  31  Sup.  Ct.  368,  reversing 
U.  S.  v.  B.  &  O."  R.  Co.,  159  Fed.  33,  86  C.  C.  A.  223,  and  citing 
old  law,  R.  S.  U.  S.  Sects.  4386,  4388  and  decisions  thereunder 
as  follows:  U.  S.  z:  Boston  &  E.  R.  Co.,  15  Fed.  209;  U.  S.  v. 
St.  L.  &  S.  F.  R.  Co.,  107  Fed.  870. 

§  484.  Meat  Inspection  Act. — The  meat  inspection  act  of 
March  4,  l^X)/,  chapter  2907,  34  Stat.  L.  1260,  contains  provi- 
sions for  the  inspection  of  meats  and  animals  that  enter  into  in- 
terstate commerce.  The  provisions  of  this  act  are  not  generally 
germane  to  the  subject  of  this  book.  C)ne  provision,  however, 
does  apply  and  it  is  here  inserted. 

That  on  and  after  October  first,  nineteen  hundred  and  six.  no 
person,  firm,  or  corporation  shall  transport  or  oft'er  for  trans- 
portation, and  no  carrier  of  interstate  or  foreign  commerce  shall 


§  485.]  Transportation  of  Animals.  677 

transport  or  receive  for  transportation  from  one  state  or  terri- 
tory or  the  District  of  Columbia  to  any  other  state  or  territory 
or  the  District  of  Columbia,  or  to  any  place  under  the  jurisdic- 
tion of  the  United  States,  or  to  any  foreign  country,  any  car- 
casses or  parts  thereof,  meat,  or  meat  food  products  thereof 
which  have  not  been  inspected,  examined,  and  marked  as  "In- 
spected and  passed,"  in  accordance  with  the  terms  of  this  act 
and  with  the  rules  and  regulations  prescribed  by  the  Secretary 
of  Agriculture :  Provided,  That  all  meat  and  meat  food  prod- 
ucts on  hand  on  October  first,  nineteen  hundred  and  six.  at 
establishments  where  inspection  has  not  been  maintained,  or 
which  have  been  inspected  under  existing  law,  shall  be  examined 
and  labeled  under  such  rules  and  regulations  as  the  Secretary 
of  Agriculture  shall  prescribe,  and  then  shall  be  allowed  to  be 
sold  in  interstate  or  foreign  commerce. 

Eighth  paragraph  of  above  act. 

§  485.  Transportation  of  Cattle  from  Quarantine  Terri- 
tory.— Sec.  1.  That  the  Secretary  of  Agriculture  is  authorized 
and  directed  to  quarantine  any  state  or  territory  or  the  District 
of  Columbia,  or  any  portion  of  any  state  or  territory  or  the  Dis- 
trict of  Columbia,  when  he  shall  determine  the  fact  that  cattle 
or  other  live  stock  in  such  state  or  territory  or  District  of  Colum- 
bia are  affected  with  any  contagious,  infectious,  or  communicable 
disease ;  and  the  Secretary  of  Agriculture  is  directed  to  give 
written  or  printed  notice  of  the  establishment  of  quarantine  to 
the  proper  officers  of  railroad,  steamboat,  or  other  transportation 
companies  doing  business  in  or  through  any  quarantined  state 
or  territory  or  the  District  of  Columbia,  and  to  publish  in  such 
newspapers  in  the  (|uarantined  state  or  territory  or  the  District 
of  Columbia,  as  the  Secretary  of  Agriculture  may  select,  notice 
of  the  establishment  of  quarantine. 

Sec.  2.  That  no  railroad  company  or  the  owners  or  masters 
of  any  steam  or  sailing  or  other  vessel  or  boat  shall  receive  for 
transportation  or  transport  from  any  quarantined  state  or  terri- 
tory or  the  District  of  Columbia,  or  from  the  quarantined  por- 
tion of  any  state  or  territory  or  the  District  of  Columbia,  any 
cattle  or  other  live  stock,  except  as  hereinafter  provided ;  nor 
shall  any  person,  company  or  corporation  deliver  for  such  trans- 
portation to  any  railroad  company,  or  to  the  master  or  owner 
of  any  boat  or  vessel,  any  cattle  or  other  live  stock,  except  as 


678  Acts  Regulating  [§  485. 

hereinafter  provided;  nor  shall  any  person,  company,  or  corpo- 
ration drive  on  foot  or  cause  to  be  driven  on  foot,  or  transport 
in  private  conveyance  or  cause  to  be  transported  in  private  con- 
veyance, from  a  quarantined  state  or  territory  or  the  District  of 
Columbia,  or  from  the  quarantined  portion  of  any  state  or  ter- 
ritory or  the  District  of  Columbia,  into  any  other  state  or  ter- 
ritory or  the  District  of  Columbia,  any  cattle  or  other  live  stocky 
except  as  hereinafter  provided. 

Sections  1  and  2  of  act  March  3,  1905.  Statute  discussed  and 
demurrer  to  an  indictment  thereunder  sustained.  U.  S.  v.  El 
Paso  &  N.  E.  R.  Co.,  178  Fed.  846. 


J 


CHAPTER  XL 

Trust  and  Other  Combinations  in  Restraint  of  Trade. 

§  486.     Contracts,  Combinations  and  Conspiracies  in  Restraint  of  In- 
terstate   Commerce    Illegal. 

487.  Monopolies   and   Conspiracies   and  'Combinations   to   Monopo- 

lize   Interstate   Trade    Illegal. 

488.  Prohibition    Applies    to    Territories    and    Between    States    and 

Territories. 

489.  Courts   Given  Jurisdiction   to   Enjoin  Violations   of  Act. 

490.  Practice   with   Reference   to   Parties   and   Service   of  Subpcenas 

Thereon. 

491.  Property  Owned  under  a   Contract  Violating  This  Act   Being 

in  Course  of  Interstate  Transportation   May   Be   Seized  and 
Forfeited. 

492.  Measure   of   Damages   in   Favor   of   Person    Injured. 

493.  Person  Includes  Corporation  and  Association. 

494.  Act   of  August  28,   1894.   So   Far  as   It   Relates   to  Trusts   and 

Combinations  in  Restraint  of  Trade. 

495.  Clayton  Act.     Definitions. 

496.  Price   Discrimination    Prohibited. 

497.  Lease    or   Sale    of   Patented   Articles. 

498.  Damages   May   Be   Recovered   by   Person   Injured. 

499.  Effect    of    Final    Judgments    in    Criminal    Prosecutions. 

500.  Labor  Not  a  Commodity. 

501.  Acquisition   by   a   Corporation   of   Stock   in   Another    Corpora- 

tion,  When   Prohibited. 

502.  Interlocking   Directorates,   When   Prohibited. 

503.  Punishment  of  Corporate  Oflicers. 

504.  Certain  Contracts  of  Common  Carriers  Must  Be  Let  by  Com- 

petitive Bids. 

505.  Authority    to    Enforce    Certain    Provisions    of    Act    Vested    in 

Interstate   Commerce    Commission — Federal   Reserve    Board 
and   Federal   Trade    Commission. 

506.  Procedure   for   Hearings   by    Boards   \'ested   with   Jurisdiction 

under  Act. 

507.  Efifect   of  the   Orders   of   Boards. 

508.  Judicial   Proceedings  to   Enforce  the  Orders   of  the   Boards. 

509.  Venue  of  Suits. 

510.  Attendance  of  Witnesses. 

511.  Guilt  of  Corporation  Deemed   Guilt  of  Officers. 

512.  District   Courts    Invested   with   Jurisdiction   to   Prevent   Viola- 

tions   of   the    Act. 

513.  Private   Persons    May   Obtain    Injunctive    Relief,   When. 

679 


680  Trust   and   Other    Combinations  [§  486. 

514.  Procedure  in  the  Issuance  of  Temporary  Restraining  Orders. 

515.  Security   Before   Issuing  Restraining  Orders  When   Required. 

516.  What   Injunction   Orders   Shall   Contain. 

517.  Injunctions   in   Suits   Between   Employer  and    Employee. 

518.  Disobedience  of  Orders  of  Court. 

519.  Same  Subject.     Procedure  Prescribed. 

520.  Right  to  a  Trial  by  Jury  Provided   for. 

521.  Review  of  Convictions  for  Violation  of  Court  Orders. 

522.  Provision  for  Trial  for  Disobedience  to  Orders  of  Court  Not 

Applicable  to  Contempt  Committed  in  the  Presence  of  the 
Court. 

523.  Limitation  in  Proceedings  for  Contempt. 

524.  That  Part  of  the  Act  Invalid,  Not  to  Affect  \'alidity  of  Other 

Portions. 

§  486.  Contracts,  Combinations  and  Conspiracies  in  Re- 
straint of  Interstate  Commerce  Illegal. — Every  contract, 
combination  in  the  form  of  trust  or  otherwise,  or  conspiracy  in 
restraint  of  trade  or  commerce  among  the  several  states,  or  with 
foreign  nations,  is  hereby  declared  to  be  illegal.  Every  person 
who  shall  make  any  such  contract  or  engage  in  any  such  combi- 
nation or  conspiracy,  shall  be  deemed  guilty  of  a  misdemeanor, 
and,  on  conviction  thereof,  shall  be  punished  by  fine  not  exceed- 
ing five  thousand  dollars,  or  by  imprisonment  not  exceeding  one 
year,  or  by  both  said  punishments,  in  the  discretion  of  the  court. 

Section  one  of  the  act  of  July  2,  1890,  known  as  the  Sherman 
Anti-Trust  Act. 

Agreement  between  carriers  to  fix  and  maintain  rates  con- 
demned. Freight  Bureau  of  Cincinnati  z'.  Cincinnati,  N.  O.  & 
T.  P.  Ry.  Co.,  6  I.  C.  C.  195,  4  I.  C.  R.  592,  618.  Commission 
has  no  authority  to  execute  anti-trust  law.  Sprigg  v.  Baltimore 
&  O.  R.  Co.,  8  I.  C.  C.  443.  x-V  noncompetitive  rate  deprives 
it  of  value  as  a  standard.  Mayor  of  Wichita  v.  A.  T.  &  S.  F. 
Ry.  Co.,  9  I.  C.  C.  534,  552.  Rates  advanced  by  concert  of  ac- 
tion "must  be  presumed  to  be  higher  than  rates  which  unre- 
strained competition  would  produce."  Central  Yellow  Pine  Asso. 
V.  111.  Cent.  R.  Co.,  10  I.  C.  C.  505.  540,  541,  542.  Order  of 
Commission  enforced.  111.  Cent.  R.  Co.  z'.  Int.  Com.  Com.,  206 
U.  S.  441,  51  L.  Ed.  1128,  27  Sup.  Ct.  700;  Tift  v.  Southern 
Ry.  Co.,  10  I.  C.  C.  548,  579.  Order  enforced.  138  Fed.  753 ; 
So.  Ry.  Co.  V.  Tift,  148  Fed.  1021,  206  U.  S.  428,  51  L.  Ed.  1124, 
27  Sup.  Ct.  709.  Where  "rates  have  been  long  in  effect,  and 
where  the  advance  has  been  made  by  concerted  action,"  the  jus- 


§  486.]  IX  Restraint  of  Trade.  681 

tification  should  be  clear.  Re  Class  and  Commodity  Rates  from 
St.  Louis  to  Texas  Common  Points,  11  I.  C.  C.  238,  268,  269,  270. 
Disappearance  of  competition  given  as  one  reason  for  holding 
an  advance  illegal.  Cattle  Raisers'  xA.sso.  v.  Mo.,  Kan.  &  Tex. 
Ry.  Co.,  11  I.  C.  C.  296.  A  rate  the  result  of  an  agreement  is 
robbed  of  the  presumption  of  reasonableness  which  it  might 
otherwise  possess.  China  and  Japan  Trading  Co.  ik  Ga.  R.  Co., 
12  I.  C.  C.  236,  241.  But  if  the  rate  is  reasonable,  although  il- 
legally established,  the  Commission  will  so  hold.  Id.  241.  War- 
ren Mfg.  Co.  V.  So.  Ry.  Co.,  12  I.  C.  C.  381.  Evidence  of  a  vio- 
lation of  the  Anti-Trust  Act  pertinent,  and  such  evidence  will 
be  given  due  weight  though  it  is  not  conclusive.  Enterprise  Mfg. 
Co.  V.  Ga.  R.  Co.,  12  I.  C.  C.  451,  456;  Board  of  Bristol,  Tenn., 
V.  Virginia  &  S.  Ry.  Co.,  15  I.  C.  C.  453,  454.  Equity  will  not 
aid  a  plaintiff  to  effect  a  combination  in  restraint  of  trade.  Am. 
Biscuit  &  Mfg.  Co.  v.  Klotz.  44  Fed.  721,  1  Fed.  Anti-Trust 
Dec.  2.  A  combination  between  coal  dealers  in  diff'erent  states  to 
control  prices  prohibited.  United  States  v.  Jellico  Mountain 
Coal  &  Coke  Co..  46  Fed.  432,  12  L.  R.  A.  753,  1  Fed.  Anti-Trust 
Dec.  9.  Control  of  railroads  by  stock  ownership  so  as  to  prevent 
competition  within  the  spirit,  if  not  letter  of  law.  Clarke  v.  Cent. 
R.  Banking  Co.,  50  Fed.  338,  1  Fed.  Anti-Trust  Dec.  17.  An 
owner  of  a  patentable  invention,  though  a  party  to  a  combination 
to  limit  its  manufacture,  may  maintain  suit  for  its  infringement. 
Strait  V.  National  Harrow  Co.,  51  Fed.  819.  1  Fed.  Anti-Trust 
Dec.  52.  Act  does  not  include  common  carriers ;  an  agreement  to 
maintain  reasonable  rates  not  violative  of  either  section  one  or 
section  two.  United  vStates  v.  Trans-Missouri  Freight  Asso.,  53 
Fed.  440,  1  Fed.  Anti-Trust  Dec.  80.  Affirmed.  58  Fed.  58,  7 
C.  C.  A.  15,  24  L.  R.  A.  72>,  1  Fed.  Anti-Trust  Dec.  186.  Re- 
versed. 166  U.  S.  290,  41  L.  Ed.  1007,  17  Sup.  Ct.  540,  1  Fed. 
Anti-Trust  Dec.  648.  Combinations  of  laborers  illegal.  United 
States  V.  Workingman's  Amalg.  Council,  54  Fed.  994,  26  L.  R. 
A.  158,  1  Fed.  Anti-Trust  Dec.  110;  Waterhouse  v.  Comer,  55 
Fed.  149,  1  Fed.  Anti-Trust  Dec.  119.  All  contracts  and  combi- 
nations in  restraint  of  interstate  trade  illegal,  Ijut  buying  up  by 
one  corporation  of  all  com]:)eting  concerns  not  a  violation  of  the 
statute.  United  States  v.  Knight,  60  Fed.  306,  1  Fed.  Anti-Trust 
Dec.  250.  Affirmed,  same  style  case,  60  Fed.  934,  9  C.  C.  A.  297, 
1  Fed.  Anti-Trust  Dec.  258,  24  L.  R.  A.  428,  156  U.  S.  1,  11.  39 
L.  Ed.  325,  15  Sup.  Ct.  249,  1  Fed.  Anti-Trust  Dec.  379,  387, 


682  Trust  AND  Other  Combinations  [§  486. 

holding  that  a  monopoly  in  manufacture  is  not  prohibited  by  the 
act.  A  combination  to  compel  carriers  engaged  in  interstate 
transportation  to  accede  to  certain  demands  illegal,  whether  such 
demands  be  reasonable  or  unreasonable.  United  States  v.  Elliott, 
62  Fed.  801,  64  Fed.  27.  1  Fed.  Anti-Trust  Dec.  262,  311.  Labor 
boycott  violates  act.  Thomas  v.  Cincinnati,  N.  O.  &  T.  P.  Ry. 
Co.,  62  Fed.  803,  1  Fed.  Anti-Trust  Dec.  266.  Violence  and 
intimidation  for  the  purpose  of  preventing  the  moving  of  trains 
engaged  in  interstate  commerce  violates  the  act.  Re  Grand  Jury, 
62. Fed.  840,  1  Fed.  Anti-Trust  Dec.  301.  Mentioned  but  not 
decided.  Arthur  v.  Oakes,  63  Fed.  310,  329,  11  C.  C.  A.  209, 
25  L.  R.  A.  414,  1  Fed.  Anti-Trust  Dec.  310.  The  word  "con- 
spiracy" broad  enough  to  cover  conspiracies  of  labor  in  restraint 
of  trade  or  commerce.  United  States  v.  Debs,  64  Fed.  724,  1 
Fed.  Anti-Trust  Dec.  322.  Writ  of  habeas  corpus  denied.  Re 
Debs,  158  U.  S.  564,  39  L.  Ed.  1092,  15  Sup.  Ct.  900,  1  Fed. 
Anti-Trust  Dec.  565.  A  corporation  organized  to  secure  assign- 
ments of  all  patents  relating  to  a  particular  apparatus  and  to 
fix  and  regulate  the  prices  thereof  is  illegal.  National  Harrow 
Co.  V.  Quick,  67  Fed.  130,  1  Fed.  Anti-Trust  Dec.  443,  608.  Af- 
firmed, same  style  case,  74  Fed.  236,  20  C.  C.  A.  410.  National 
Harrow  Co.  v.  Hench,  76  Fed.  667,  1  Fed.  Anti-Trust  Dec.  610. 
Affirmed,  same  style  case,  83  Fed.  36,  27  C.  C.  A.  349,  39  L.  R. 
A.  299,  1  Fed.  Anti-Trust  Dec.  742.  See  also  same  style  case,  84 
Fed.  226,  1  Fed.  Anti-Trust  Dec.  746.  "A  conspiracy  is  a  com- 
bination of  two  or  more  persons,  by  concerted  action,  to  accom- 
plish a  criminal  or  unlawful  purpose,  or  some  purpose  not  in 
itself  unlawful  or  criminal,  by  criminal  or  unlawful  means,  the 
common  design  being  the  essence  of  the  charge."  This  case, 
which  was  a  charge  to  a  jury,  defines  trade  and  commerce  and 
holds  "that  Pullman  cars  in  use  upon  the  roads  are  instrumental- 
ities of  commerce."  United  States  v.  Cassidy,  67  Fed.  698, 
702,  1  Fed.  Anti-Trust  Dec.  449.  455,  citing  Pettibone  v.  United 
States,  148  U.  S.  197,  203,  Z7  L.  Ed.  419,  13  Sup.  Ct.  542.  Not 
applicable  to  a  state  which  by  its  laws  assumes  a  monopoly  of 
the  liquor  traffic.  Lowenstein  v.  Evans,  69  Fed.  908,  1  Fed. 
Anti-Trust  Dec.  598.  An  interstate  carrier  may  legally  make  an 
exclusive  arrangement  with  another  carrier  for  through  trans- 
portation. Prescott  &  A.  C.  R.  Co.  v.  Atchison.  T.  &  S.  F.  R. 
Co.,  73  Fed.  438,  1  Fed  Anti-Trust  Dec.  604.  One  having  re- 
ceived the  services  of  a  tug  can  not  escape  payment  therefor,  al- 


§  486.]  IN  Restraint  of  Trade.  683 

though  the  tug  owners  are  members  of  an  association  illegal 
imder  the  act.  The  Charles  E.  Wiswall,  74  Fed.  802,  1  Fed. 
Anti-Trust  Dec.  608.  Affirmed.  Same  style  case,  86  Fed.  671, 
30  C.  C.  A.  339,  1  Fed.  Anti-Trust  Dec.  850.  The  statute  covers, 
and  was  intended  to  cover,  common  carriers  by  railroad,  and  pro- 
hibits all  agreements  and  combinations  in  restraint  of  trade  or 
commerce,  regardless  of  the  question  whether  or  not  such  agree- 
ments were  reasonable.  United  States  v.  Trans-Missouri  Freight 
Asso.,  166  U.  S.  290,  327,  335,  41  L.  Ed.  1007,  17  Sup.  Ct.  540, 
1  Fed.  Anti-Trust  Dec.  648.  All  restraints  prohibited,  whether 
reasonable  or  unreasonable,  and  whether  or  not  the  law  is  vio- 
lated by  the  practical  workings  and  results  of  the  association  al- 
leged to  be  an  illegal  combination.  United  States  v.  Hopkins, 
82  Fed.  529,  1  Fed.  Anti-Trust  Dec.  725,  748.  Reversed  because 
the  business  was  not  interstate  commerce.  Hopkins  v.  United 
States,  171  U.  S.  578,  43  L.  Ed.  290,  19  Sup.  Ct.  40,  1  Fed.  Anti- 
Trust  Dec.  941.  Followed.  Anderson  v.  United  States,  171  U. 
S.  604,  43  L.  Ed.  300,  19  Sup.  Ct.  50,  1  Fed.  Anti-Trust  Dec. 
967.  Any  restraint  illegal.  United  States  v.  Coal  Dealers' 
Asso.,  85  Fed.  252,  1  Fed  Anti-Trust  Dec.  749.  A  contract  op- 
erating as  a  restraint  in  soliciting  orders  for  and  selling  goods 
in  one  state  to  be  delivered  in  another  is  within  the  act.  The 
doctrine  of  tlge  common  law  as  well  as  the  effect  of  the  statute 
discussed.  United  States  v.  Addyston  Pipe  &  Steel  Co.,  85  Fed. 
271,  29  C.  C.  A.  141,  46  L.  R.  A.  122,  1  Fed.  Anti-Trust  Dec. 
772.  Affirmed.  Addyston  Pipe  &  Steel  Co.  v.  United  States, 
175  U.  S.  211,  44  L.  Ed.  136,  20  Sup.  Ct.  96,  1  Fed.  Anti-Trust 
Dec.  1009,  but  decree  modified  so  as  not  to  affect  commerce 
wholly  within  a  state.  An  independent  dealer  who,  without 
knowledge  of  the  intention  of  the  buyer,  sells  all  his  product 
to  one  who  makes  the  purchase  as  part  of  a  general  scheme  of 
monopoly  does  not  violate  the  law.  Carter-Crume  Co.  v.  Peur- 
rung,  86  Fed.  439,  30  C.  C.  A.  174,  1  Fed.  Anti-Trust  Dec.  844. 
Allegations  sufficient  to  bring  case  within  the  law.  Lowry  v. 
Tile,  Mantel  &  Grate  y\sso.,  98  Fed.  817,  1  Fed.  Anti-Trust  Dec. 
995.  Affirmed.  Montague  v.  Lowry,  115  Fed.  27,  52  C.  C.  A. 
621,  2  Fed.  Anti-Trust  Dec.  112,  193  U.  S.  38,  48  L.  Ed.  608, 
24  Sup.  Ct.  307,  2  Fed.  Anti-Trust  Dec.  327.  A  note  payable  to 
a  corporation  for  goods  can  not  be  avoided  because  such  corpora- 
tion is  a  trust  organized  and  operating  in  violation  of  the  act. 
Union  Sewer-Pipe  Co.  v.  Connelly,  99  Fed.  354,  2  Fed.     Anti- 


684  Trust  AND  Other  Combinations  [§  486. 

Trust  Dec.  1.     Affirmed  on  the  point  annotated  and  also  holding 
that  the  Illinois  Anti-Trust  Act  was  void  because  it  exempted 
r.gricultural  products  and  live  stock   from  its  provisions.     Con- 
nelly V.  Union  Sewer-Pipe  Co..  184  U.  S.  540,  46  L.  Ed.  679, 
22  Sup.  Ct.  431,  2  Fed.  Anti-Trust  Dec.  118.     An  infringer  of 
a  i)atent  can  not  defend  on  the  ground  that  the  owner  thereof  is 
organized  in  violation  of  the  act  and  procured  the  patent  in  pur- 
suance of  such   illegal  organization.     National   Folding  Box  & 
Paper  Co.  v.  Robertson,  99  Fed.  985,  2  Fed.  Anti-Trust  Dec. 
4;  Otis  Elevator  Co.  v.  Geiger,  107  Fed.  131,  2  Fed.  Anti-Trust 
Dec.  66;  General  Elec.  Co.  i'.  Wise,  119  Fed.  922,  2  Fed.  Anti- 
Trust  Dec.  205  ;  United  States  Consolidated  Seeded  Raisin  Co. 
V.  Griffin,  126  Fed.  364,  61  C.  C.  A.  334,  2  Fed.  Anti-Trust  Dec. 
288.     If  trade  is  restrained  by  a  contract  or  combination,  it  is 
an  illegal  act,  even  though  the  public  may  be  benefited  thereby. 
United  States  zk  Chesapeake  &  O.  Fuel  Co.,  105  Fed.  93,  2  Fed. 
Anti-Trust  Dec.  34.     Affirmed.     Chesapeake  &  O.  Fuel  Co.  v. 
United  States,  115  Fed.  610,  53  C.  C.  A.  256,  2  Fed.  Anti-Trust 
Dec.   151.     A  combination  of   manufacturers  and  dealers,  each 
member  of  which  paid  certain  entrance  fees  and  dues  and  the 
constitution  of  which  prohibited  its  members  from  buying  from 
other  than  members,   illegal.     Lowry  v.  Tile,   Mantel   &   Grate 
Asso.,  106  Fed.  38,  2  Fed.  Anti-Trust  Dec.  53.    AQirmed.    Mon- 
tague V.  Lowry,  115  Fed.  27,  52  C.  C.  A.  621,  2  Fed.  Anti-Trust 
Dec.  112,  193  U.  S.  38,  48  L.  Ed.  608,  24  Sup.  Ct.  307,  2  Fed. 
Anti-Trust  Dec.  327.     A  pooling  combination  of  carriers  is  il- 
legal, and  a  carrier  party  thereto  can  not  maintain  a  suit   for 
injunction  against  a  ticket  broker  who  sells  non-transferable  tick- 
ets issued  as  part  of  the  pooling  agreement.     Delaware,  L.  &  W. 
R.  Co.  V.  Frank,  110  Fed.  689,  2  Fed.  Anti-Trust  Dec.  81.     Im- 
munity act  of  Feb.   11,  1893,  does  not  apply  to  this  act.     Foot 
V.  Buchanan,  113  Fed.  156,  2  Fed.  Anti-Trust  Dec.  103.     A  pri- 
vate   individual    may    successfully    defend    an   action   brought 
against  him  on  a  contract  in  violation  of  this  act.     A  patentee 
may  legally  put  restraint  on  a  licensee  of  the  patent,  although 
such  restraints  are  violative  of  commerce  in  the  patented  article. 
Bement  v.  National  Harrow  Co.,  186  U.  S.  70,  46  L.  Ed.  1058, 
22  Sup.  Ct.  747,  2  Fed.  Anti-Trust  Dec.  169.     But  the  contract 
extending  beyond  the   protection   of  the   patent   is   illegal.      In- 
diana Mfg.   Co.  v.  J.   I.  Case,  Threshing  Mch.   Co.,   148  Fed. 
21.    Reversed,  same  style  case,  154  Fed.  365,  83  C.  C.  A.  343.    A 


§  486.]  IN  Restraint  of  Trade.  685 

paving  contract  limiting  the  material  used  to  that  manufactured 
by  only  one  company  is  not  illegal.  Field  z'.  Barber  Asphalt 
Paving  Co.,  117  Fed.  925,  2  Fed.  Anti-Trust  Dec.  192.  Affirmed, 
same  style  case,  194  U.  S.  618,  48  L.  Ed.  1142,  24  Sup.  Ct.  784, 
2  Fed.  Anti-Trust  Dec.  555.  The  statute  includes  all  combina- 
tions which  directly  and  substantially  restrict  interstate  com- 
merce, and  applies  to  interstate  carriers.  The  act  is  violated  by 
a  contract  by  which  a  majority  of  the  stock  of  each  of  two  com- 
peting roads  is  transferred  to  a  corporation  organized  to  vote 
such  stock,  the  voting  corporation  issuing  its  stock  to  the  holders 
of  the  stock  of  the  two  railroad  corporations.  United  States  v. 
Northern  Securities  Co.,  120  Fed.  721,  2  Fed.  Anti-Trust  Dec. 
215.  Affirmed,  reviewing  and  discussing  former  anti-trust  de- 
cisions of  the  court.  Northern  Securities  Co.  z'.  United  States, 
193  U.  S.  197,  48  L.  Ed.  679,  24  Sup.  Ct.  436,  2  Fed.  A»ti-Trust 
Dec.  338.  A  board  of  trade  may  sell  its  quotations  to  a  telegraph 
company  with  the  limitation  that  they  shall  not  be  furnished  to 
a  bucket  shop.  Board  of  Trade  of  Chicago  z'.  Christie  Grain 
&  Stock  Co.,  121  Fed.  608,  2  Fed.  Anti-Trust  Dec.  233.  Reversed 
on  other  grounds.  Christie  Grain  &  Stock  Co.  v.  Board  of  Trade 
of  Chicago,  125  Fed.  161,  61  C.  C.  A.  11.  Circuit  court  of  ap- 
peals reversed  and  circuit  court  affirmed  same  style  case.  Board 
of  Trade  of  Chicago  v.  Christie  Grain  &  Stock  Co.,  198  U.  S. 
236,  49  L.  Ed.  1031,  25  Sup.  Ct.  637,  2  Fed.  Anti-Trust  Dec. 
717.  A  combination  to  restrain  trade  illegal,  although  prices 
resulting  therefrom  reasonable.  United  States  v.  Swift  &  Co., 
122  Fed.  529,  2  Fed.  Anti-Trust  Dec.  237.  Affirmed.  Swift  & 
Co.  V.  United  States,  196  U.  S.  375,  49  L.  Ed.  518,  25  Sup.  Ct. 
276,  2  Fed.  Anti-Trust  Dec.  641,  holding  that  although  the 
separate  elements  of  a  combination  may  be  legal,  if  the  common 
intent  is  to  monopolize  trade,  it  is  illegal.  The  Minnesota  Anti- 
Trust  Act  not  violated  under  the  facts  pleaded.  Minnesota 
V.  Northern  Securities  Co.,  123  Fed.  692,  2  Fed.  Anti-Trust  Dec. 
246.  Reversed  because  the  federal  court  had  no  jurisdiction  and 
remanded  to  the  state  court.  Minnesota  v.  Northern  Securities 
Co.,  194  U.  S.  48,  48  L.  Ed.  870,  24  Sup.  Ct.  598,  2  Fed.  Anti- 
Trust  Dec.  533.  A  combination  to  control  prices  in  a  local 
market  and  to  refuse  to  sell  to  consumers  who  buy  from  non- 
members,  some  of  whom  live  out  of  the  state,  is  not  within  act. 
Ellis  V.  Inman,  Poulsen  &  Co.,  124  Fed.  956,  2  Fed.  Anti-Trust 
Dec.  268.    Reversed,  holding  that  the  federal  law  applied.    Same 


686  Trust  and  Other  Combixatioxs  [§  486. 

style  case,  131  Fed.  182,  65  C.  C.  A.  488,  2  Fed.  Anti-Trust  Dec. 
577.  Sale  of  goods  limiting  the  right  of  the  vendor  to  go  into 
business  within  fifty  miles  of  the  place  of  sale  valid,  and  being 
within  a  state  not  violative  of  the  federal  act.  Robinson  v. 
Suburban  Brick  Co..  127  Fed.  804,  62  C.  C.  A.  484,  2  Fed.  Anti- 
Trust  Dec.  312.  Booth  &  Co.  v.  Davis,  127  Fed.  875,  2  Fed. 
Anti-Trust  Dec.  318.  Affirmed.  Davis  v.  Booth.  131  Fed.  31, 
65  C.  C.  A.  269,  2  Fed.  Anti-Trust  Dec.  566.  Writ  of  certiorari 
denied  by  Supreme  Court.  195  U.  S.  636.  See  also  Camors- 
McConnell  Co.  v.  McConnell,  140  Fed.  412,  2  Fed.  Anti-Trust 
Dec.  817.  Affirmed.  McConnell  v.  Camors-McConnell  Co.,  140 
Fed.  987.  72  C.  C.  A.  681,  2  Fed.  Anti-Trust  Dec.  825.  Rehear- 
ing denied.  Same  case,  152  Fed.  321,  81  C.  C.  A.  429;  American 
Brake  Beam  Co.  v.  Pungs,  141  Fed.  923,  7c>  C.  C.  A.  157,  2 
Fed.  Aifti-Trust  Dec.  826.  Combination  of  carriers  by  wdiich  by 
concerted  action  rates  are  advanced  violates  act.  Tift  v.  Southern 
Ry.  Co.,  138  Fed.  Anti-Trust  Dec.  753.  2  Fed.  Anti-Trust  7ZZ. 
Affirmed.  So.  Ry.  Co.  v.  Tift,  148  Fed.  1021.  206  U.  S.  428,  51  L. 
Ed.  1124,  27  Sup.  Ct.  70').  After  a  copyrighted  book  has  been 
sold,  although  with  a  statement  printed  therein  that  the  purchaser 
could  not  sell  except  at  a  stated  price,  the  purchaser  can  sell 
at  any  price  he  sees  fit.  Book  trust  declared  illegal.  Bobbs- 
Merrill  Co.  v.  Straus,  139  Fed.  155,  2  Fed.  Anti-Trust  Dec.  755. 
Affirmed.  Same  style  case,  147  Fed.  15,  77  C.  C.  A.  607,  15  L. 
R.  A.  766,  210  U.  S.  339,  52  L.  Ed.  1086,  28  Sup.  Ct.  722.  The 
immunity  act,  act  Feb.  19,  1903,  applies  to  the' Anti-Trust  Act. 
Re  Hale,  139  Fed.  496,  2  Fed.  Anti-Trust  Dec.  804.  Affirmed. 
Hale  V.  Henkel,  201  U.  S.  43,  50  L.  Ed.  652,  26  Sup.  Ct.  370, 
2  Fed.  Anti-Trust  Dec.  874 ;  McAlister  v.  Henkel,  201  U.  S.  90, 
50  L.  Ed.  671,  26  Sup.  Ct.  385,  2  Fed.  Anti-Trust  Dec.  919. 
Followed,  Nelson  v.  United  States,  201  U.  S.  92,  50  L.  Ed.  673, 
26  Sup.  Ct.  358,  2  Fed.  Anti-Trust  Dec.  920.  A  patentee  may 
grant  licenses  to  sell  the  patented  article  only  on  condition  of 
selling  at  prices  fixed  by  the  patentee,  but  under  the  facts  of  this 
case  license  contract  void  as  violative  of  Anti-Trust  Act.  Rubber 
Tire  Wheel  Co.  z-.  Milwaukee  Rubber  Co.,  142  Fed.  531,  2  Fed. 
Anti-Trust  Dec.  855.  Reversed,  same  style  case,  154  Fed.  358, 
83  C.  C.  A.  336.  Good  will  contract  valid.  A  purchaser  of  a 
river  boat  can  not  refuse  to  pay  therefor  because  in  the  contract 
of  purchase  he  agreed  to  maintain  existing  rates.  Cincinnati, 
P.  B.  S.  k  P.  P.  Co.  V.  Bay,  200  U.  S.  179,  50  L.  Ed.  428,  26 


§  486. J  IN  Restraint  op  Trade.  687 

Sup.  Ct.  208,  2  Fed.  Anti-Trust  Dec.  867.  An  order  directing 
a  witness  to  answer  questions  relating  to  violations  of  the  act  is 
interlocutory  and  not  appealable.  Alexander  v.  United  States, 
201  U.  S.  117.  50  L.  Ed.  686,  26  Sup.  Ct.  356.  2  Fed.  Anti- 
Trust  Dec.  945.  Immunity  does  not  apply  to  corporations  whose 
officers  may  testify,  it  does  apply  to  individuals  who  testify  at 
hearings  before  the  Commissioner  of  Corporations.  United 
States  V.  Armour,  162  Fed.  808,  2  Fed.  Anti-Trust  Dec.  951. 
.\ct  does  not  make  void  a  collateral  contract  for  the  manufacture 
and  sale  of  goods.  Hadley,  Dean  Plate  Glass  Co.  v.  Highland 
Glass  Co.,  143  Fed.  242,  74  C.  C.  A.  462,  2  Fed.  Anti-Trust  Dec. 
994.  Followed,  Chicago  Wall  Paper  Mills  v.  General  Paper  Co., 
147  Fed.  491,  78  C.  C.  A.  607,  2  Fed.  Anti-Trust  Dec.  1027. 
It  is  not  unlawful  for  a  manufacturer  of  a  proprietary  medicine 
to  contract  with  the  dealers  who  purchase  such  medicine  from 
him,  that  they  shall  sell  at  a  fixed  price.  Hartman  v.  John  D. 
Park  &  Sons,  145  Fed.  358,  2  Fed.  Anti-Trust  Dec.  999.  Re- 
versed, holding  contract  unenforceable.  John  D.  Park  &  Sons 
t'.  Martman,  153  Fed.  24,  82  C.  C.  A.  158,  12  L.  R.  A.  (N.  S.) 
1135.  Circuit  Court  followed  Dr.  Miles  Medicine  Co.  v.  Jaynes 
Drug  Co.,  149  Fed.  838.  Circuit  court  of  appeals  followed. 
Dr.  Miles  Medical  Co.  v.  John  D.  Park  &  Sons  Co.,  164  Fed. 
803,  90  C.  C.  A.  599.  Writ  of  error  granted  by  Suprme  Court. 
A  carrier  may  enter  into  an  exclusive  contract  with  one  to  build 
up,  develop  and  conduct  a  particular  traffic  business  along  its 
line.  Delaware,  L.  &  W.  R.  Co.  v.  Kutter.  147  Fed.  51,  77  C. 
C.  A.  315,  2  Fed.  Anti-Trust  Dec.  1021.  Petition  for  writ  of 
certiorari  denied,  203  U.  S.  588,  51  L.  Ed.  330.  An  agreement 
between  publishers  of  copyrighted  books,  who  control  ninety  per 
cent,  of  the  book  business,  not  to  sell  to  any  one  who  cuts  prices, 
or  who  sells  to  one  who  cuts  prices,  is  illegal.  Mines  v.  Scribner, 
147  Fed.  927,  2  Fed.  Anti-Trust  Dec.  1035.  See  case  of  Bobbs- 
Merrill  Co.  v.  Straus,  supra.  The  attempt  of  a  labor  union  to 
compel,  by  a  boycott,  a  manufacturer  to  unionize  his  factory  not 
within  act.  Loewe  v.  Lawlor,  148  Fed.  924.  See  same  case,  130 
Fed.  633,  2  Fed.  Anti-Trust  Dec.  563,  142  Fed.  216,  2  Fed. 
Anti-Trust  Dec.  854.  Reversed,  holding  that  such  acts  con- 
stituted a  violation  of  the  act.  Loewe  v.  Lawlor,  208  U.  S.  274, 
52  L.  Ed.  488,  28  Sup.  Ct.  301.  Purchase  money  of  goods  can 
not  be  recovered  when  the  purchase  was  made  as  part  of  a  com- 
bination  in  restraint  of  trade.     Continental  Wall  Paper  Co.  v. 


688  Trust  AND  Other  CoMBiXATioxs  [§  486. 

Lewis  Voight  &  Sons  Co.,  148  Fed.  939,  78  C.  C.  A.  567.  Affirmed, 
same  style  case,  212  U.  S.  227,  53  L.  Ed.  486,  29  Sup.  Ct.  280. 
Act  not  affect  a  contract  by  which  foreign  ship  owners  endeavor 
to  prevent  deaHng  with  their  competitors.  Thomson  v.  Union 
Castle  Mail  Steamship  Co.,  149  Fed.  933.  Reversed,  holding  that 
when  the  combination  was  put  in  eft'ect  in  the  United  States  it 
violated  its  laws.    Thomson  v.  Union  Castle  Mail  Steamship  Co., 

166  Fed.  251,  .32  C.  C.  A.  315.  Trusts  defined,  quoting  Coke's 
definition.  Re  Charge  to  Grand  Jury,  151  Fed.  834.  Though  a 
rate  is  established  in  violation  of  Anti-Trust  Act,  application 
must  first  be  made  to  the  Interstate  Commerce  Commission  to 
declare  rate  illegal.  American  Union  Coal  Co.  v.  Penn.  R.  Co., 
159  Fed.  278;  Meeker  v.  Lehigh  V.  R.  Co.,  162  Fed.  354.  Mere 
agreement  not  eft'ective  does  not  violate  law.  The  facts  in  the 
case  show  a  violation.  United  States  Tobacco  Co.  v.  American 
Tobacco  Co.,  163  Fed.  701 ;  Weisert  Bros.  Tobacco  Co.  %'.  Amer- 
ican Tobacco  Co.,  Larus  &  Bro.  Co.  v.  Same,  163  Fed.  712.  The 
American  Tobacco  Co.  declared  a  trust.  United  States  v.  Amer- 
ican Tobacco  Co.,  164  Fed.  700;  People's  Tobacco  Co.  v.  Ameri- 
can Tobacco  Co.,  170  Fed.  396,  95  C.  C.  A.  566.  A  patentee  may 
legally  limit  the  licensee  in  the  manner  of  selling.  Goshen  Rub- 
ber Works  V.  Single  Tube  A.  &  B.  Tire  Co..  166  Fed.  431,  92  C. 
C.  A.  183,  but  not  so  when  the  purpose  of  the  contract  is  to  en- 
hance prices  and  not  as  an  incident  to  the  sale  of  the  patent 
right.  Blount  Mfg.  Co.  v.  Yale  &  Towne  Mfg.  Co.,  166  Fed. 
555.  Facts  not  constituting  a  violation.  Bigelow  v.  Calumet 
&  Hecla  Mining  Co.,  167  Fed.  704.     Affirmed,  same  style  case, 

167  Fed.  721,  94  C.  C.  A.  13.  A  lease  of  a  plant  executed  in 
pursuance  of  a  plan  to  monopolize  the  cotton  compressing  busi- 
ness illegal.  Shawnee  Compress  Co.  v.  Anderson,  209  U.  S.  423, 
52  L.  Ed.  865,  28  Sup.  Ct.  572.  No  judgment  will  be  rendered 
for  the  purchase  price  of  property  when  "such  a  judgment 
would,  in  effect,  aid  the  execution  of  agreements  which  consti- 
tuted" an  illegal  combination.  Four  judges  dissent.  Conti- 
nental Wall  Paper  Co.  v.  Voight  &  Sons  Co.,  212  U.  S.  227,  53 
L.  Ed.  29  Sup.  Ct.  280. 

Notes  of  Decisions  Rendered  Since  1909. 

Monopoly  defined  as  the  concentration  of  business.  National 
Fire  Proofing  Co.  v.  Masons'  Builders'  Ass'n,  169  Fed.  259.  94 
C.  C.  A.  535.     Charge  to  a  jury  defining  monopoly  and  giving 


§  486.]  IN  Restraint  of  Trade;. 

the  elements  of  the  crime  under  the  statute.  U.  S.  v.  American 
Naval  Stores  Co.,  172  Fed.  455,  affirming  Nash  v.  U.  S.,  186 
Fed.  489,  see  also  U.  S.  ?'.  American  Naval  Stores  Co.,  186  Fed. 
592.  A  Coal  Company  may  select  its  customers  and  refuse  to 
sell  others.  Union  Pac.  Coal  Co.  v.  U.  S.,  173  Fed.  737,  97 
C.  C.  A.  578.  That  the  holder  of  a  patent  is  a  party  to  an  unlaw- 
ful conspiracy  in  restraint  of  trade  is  no  defense  to  a  suit  for 
an  infringement  of  the  patent.  Johns-Pratt  Co.  v.  Sachs  Co., 
176  Fed.  738;  Northwestern  Cons.  M.  Co.  v.  Callam  &  Son,  177 
Fed.  786;  Virtue  v.  Creamery  Package  Mfg.  Co..  179  Fed.  115, 
102  C.  C.  A.  413;  Motion  Picture  Patent  Co.  v.  Ullman,  186 
Fed.  174;  U.  S.  Fire  Escape  Co.  z'.  Joseph  Halstead  Co.,  195 
Fed.  295;  Fraser  v.  Dufifey,  196  Fed.  900;  Coco-Cola  Co.  v. 
Deacon-Brown  Bottling  Co.,  200  Fed.  105 ;  Coco-Cola  Co.  v. 
Gay-Ola  Co.,  200  Fed.  720 ;  Motion  Picture  Patent  Co.  v.  Eclair 
Film  Co.,  208  Fed.  416.  The  prohibition  is  of  all  restraint,  not 
merely  unreasonable  restraint.  Ware-Kramer  Tobacco  Co.  v. 
Am.  Tob.  Co.,  180  Fed.  160.  A  sale  of  corporate  assets  can  not 
be  enjoined  under  the  anti-trust  statute  unless  such  sale  furthers 
a  conspiracy  in  violation  of  such  statute.  Bonney  i'.  Cumber- 
land-Ely Coffee  Co.,  183  Fed.  650.  Sale  of  good  will  legal  if 
made  in  good  faith,  otherwise  if  for  the  purpose  of  restraining 
trade.  Darius  Cole  Transp.  Co.  v.  White  Star  Line,  186  Fed. 
63,  108  C.  C.  A.  165,  writ  of  certiorari  denied  same  styled  case, 
225  U.  S.  704,  56  L.  Ed.  1265,  32  Sup.  Ct.  837.  To  the  same  ef- 
fect see  U.  S.  V.  Great  Lakes  Towing  Co.,  208  Fed.  733,  holding 
the  contract  there  set  out  to  be  illegal.  Sufficiency  of  indict- 
ment discussed.  U.  S.  v.  Swift,  188  Fed.  92 ;  U.  S.  v.  Patterson, 
201  Fed.  697.  Not  all  combinations  illegal.  U.  S.  v.  E.  I.  Du- 
Pont  De  Nemours  &  Co.,  188  Fed.  127.  A  railroad  company  can 
not  legally  give  an  exclusive  right  to  one  tug  for  the  use  of  its 
pier.  Baker- Whiteley  Coal  Co.  v.  B.  &  O.  R.  Co.,  188  Fed.  405, 
110  C.  C.  A.  234,  reversing:  same  styled  case,  176  Fed.  632.  No 
defense  to  a  condemnation  proceeding  that  corporation  seeking 
to  condemn  was  an  illegal  combination.  Oregon-Washington  R. 
&  Nav.  Co.  V.  Wilkinson,  188  Fed.  363.  Purchase  of  controlling 
stock  in  competitive  corporation  held  invalid,  but  not  to  prevent 
a  sale  thereof  in  good  faith.  Steele  v.  United  Fruit  Co., 
190  Fed.  631.  Regulation  of  trade  not  the  same  as  restraint  of 
trade.  U.  S.  v.  John  Reardon  &  Sons  Co.,  191  Fed.  454.  Pur- 
chaser of  goods  can  not  defend  against  suit  for  purchase  price 


690  Trust  and  Other  Combinations  [§  486. 

on  the  ground  tliat   the  seller  is   engaged  in  violating  the  law. 
International  Harvester  Co.  %'.  Oliver,  192  Fed.  59.     As  to  Har- 
vester Co.,  see  U.   S.  i'.   International  Harvester  Co.,  214  Fed. 
987.     A  contract  between  a  long  distance  telephone  company  and 
a  local  one  for  exclusive  interchange  of  messages  legal.     Pacific 
Tel.  &  Tel.  Co.  v.  Anderson.  196  Fed.  699.     A  holding  to  the 
contrary.     U.  S.  Telephone  Co.  v.  Central  Union  Tel.  Co.,  202 
Fed.  66,  122  C.  C.  A.  86,  affirming  same  styled  case,  171   Fed. 
130.    A  defendant  convicted  of  violating  the  statute  may  never- 
theless   sell  its    trade-mark.     Weyman-Bruton    Co.  v.    Old    In- 
dian SnufT  Mills.  197  Fed.   1075.  The  statute  applies  to  interna- 
tional transportation.  U.   S.  v.  Hamburg-Amer.   P.-F.-A.  Gesel- 
schaft.  200  Fed.  806.  A  contract  between  a  corporation  and  a  labor 
union  by  which   union   laborers  were  employed,  but  which   did 
not  prevent  the  employment   of   others   than  union   men.   legal. 
Post  V.  Buck's  Stove  &  Range  Co..  200  Fed.  918.     "Restraint  of 
trade"  includes  restraint  of  competition.     U.  S.  i'.  Eastern  States 
Retail  L.  D.  Ass'n,  201   Fed.  581.     The  degree  of  restraint  is 
mimaterial.     U.   S.  v.  Patterson,  201   Fed.  697 ;  same  case  and 
style.  205  Fed.  292.     The  enforcement  in  good  faith  by  citizens 
of  a  municipality  of  an  ordinance  invalid  under  the  statute  does 
not  subject  such  citizens  to  liability  in  damages.  Citizens*  Whole- 
sale Supply  Co.  v.  Snyder,  201  Fed.  907.     Held  that  the  United 
Mine  Workers  is  an  unlawful  combination.     Hitchman  Coal  & 
Coke  Co.  V.  Mitchell,  202  Fed.  512.     Coal  carrying  railroads  en- 
joined.   U.  S.  v.  Lake  S.  &  M.  S.  Ry.  Co.,  203  Fed.  295.  The  stat- 
ute applies  not  only  to  those  who  initiate  the  monopoly,  but  also 
to  those  who  prosecute  the  purpose.     U.  S.  v.  New  Departure 
Mfg.  Co.,  204  Fed.  107.    A  license  restriction  not  for  the  purpose 
of  protecting  the  patient  but  to  restrict  trade  is  illegal.    Robt.  H. 
Ingersoll  &  Bro.  v.  McColl.  204  Fed.   147.     Circumstantial  evi- 
dence sufficient  to  go  to  the  jury  under  the  facts  stated.    Hale  v. 
Hatch  &  North  Coal  Co.,  204  Fed.  433.     Not  a  monopoly  for  a 
pipe  line  company  to  pipe  only  its  own  oil.  Prairie  Oil  &  Gas  Co. 
V.  U.  S..  204  Fed.  798.  Opin.  Com.  Ct.  Nos.  75  to  80,  page  545.  re- 
versed without  discussing  this  point.     U.  S.  v.  Ohio  Oil  Co.,  234 
U.  S.  548.  58  L.  Ed.  1454,  34  Sup.  Ct.  956.    A  patentee  may  not 
resort  to  unfair  methods  to  force  a  competitor  out  of  business. 
The  patent  laws  and  the  anti-trust  laws  must  be  construed  to- 
gether.    U.  S.  v.  Patterson.  205  Fed.  292,  201  Fed.  697.     Com- 
bination held  illegal  though  not  unduly  exercised  to  raise  prices. 


§  486.]  IN  Restraint  of  Trade.  691 

O'Halloran  v.  Am.  Sea  Green  Slate  Co.,  207  Fed.  187.  A  con- 
tract between  many  engaged  in  the  same  business  to  refrain 
from  selling  an  individual  or  a  class  is  illegal.  U.  S.  v.  South- 
ern Wholesale  Grocers'  Ass'n,  207  Fed.  434.  Following  cited 
cases  from  Supreme  Court  held  that  a  patentee  may  not  restrict 
the  sale  of  a  patented  article  after  sale  thereof  to  a  dealer.  Kel- 
logg Toasted  Corn  Flakes  Co.  v.  Buck,  208  Fed.  383.  A  conspir- 
acy in  relation  to  labor  unions  defined.  Lawlor  v.  Loewe,  209 
Fed.  721,  for  a  history  of  this  case  see  p.  723  of  opinion.  The 
restraint  here  found  to  be  unreasonable.  U.  S.  v.  Whiting,  212 
Fed.  466.  A  "boycott"  not  necessarily  illegal,  the  test  being  the 
legality  of  the  object  and  of  the  means  used.  Gill  Engraving  Co. 
V.  Doerr,  214  Fed.  111.  Elimination  of  competition  by  consoli- 
dation of  competing  corporations  equally  illegal  as  though  such 
purpose  was  effected  by  an  agreement.  U.  S.  v.  International 
Harvester  Co.,  214  Fed.  987.  Acts  done  outside  the  United 
State  in  Costa  Rica  not  within  the  statute.  American  Banana  Co. 
V.  United  Fruit  Co.,  213  U.  S.  347,  53  L.  Ed.  826,  29  Sup.  Ct. 
511,  affirming  same  styled  case,  166  Fed.  261,  92  C.  C.  A.  325. 
"Conspiracy"  defined.  United  States  v.  Kissell,  218  U.  S.  601, 
54  L.  Ed.  1168,  31  Sup.  Ct.  124,  reversing  on  another  point  same 
styled  case  when  definition  is  given,  173  Fed.  823.  That  a  medi- 
cine is  a  proprietary  one  does  not  make  a  restraint  of  trade 
thereon  otherwise  than  illegal.  Dr.  Miles  Medical  Co.  v.  John  D. 
Park  &  Sons  Co.,  220  U.  S.  373,  55  L.  Ed.  502,  31  Sup.  Ct.  376, 
affirming  same  styled  case.  164  Fed.  803,  90  C.  C.  A.  579.  "Rule 
of  reason"  stated  and  the  statute  fully  discussed.  Standard  Oil 
Co.  V.  United  States,  221  U.  S.  1,  55  L.  Ed.  619,  31  Sup.  Ct.  502, 
34  L.  R.  A.  (N.  S.)  834,  Ann.  Cas.  1912D  734,  modifying,  U.  S. 
V.  Standard  Oil  Co.,  173  Fed.  177;  U.  S.  v.  Am.  Tob.  Co.,  221 
U.  S.  106.  55  L.  Ed.  663,  31  Sup.  Ct.  632,  reversing  same  styled 
case,  164  Fed.  700.  Consolidation  of  railway  terminal  facilities 
at  St.  Louis  held  illegal,  U.  S.  v.  Terminal  R.  Ass'n,  224  U.  S. 
383,  56  L.  Ed.  810,  31  Sup.  Ct.  507.  An  agreement  of  80  per 
cent  of  the  jobbers  in  a  particular  business  to  buy  only  from 
certain  persons  illegal.  Standard  Sanitary  Mfg.  Co.  v.  U.  S., 
226  U.  S.  20,  57  L.  Ed.  107.  33  Sup.  Ct.  9,  affirming,  U.  S.  v. 
Standard  Sanitary  Mfg.  Co..  191  Fed.  172.  The  combination 
between  the  Union  Pacific  Railroad  Co.  and  the  Southern  Pa- 
cific Co.  held  to  be  illegal.  U.  S.  v.  Union  Pac.  Co.,  226  U.  S. 
^1,  57  L.  Ed.  124,  33  Sup.  Ct.  53,  modifying  decisions  in  same 


692  Trust  AND  Other  Combinations  [§486. 

styled  case,  188  Fed.  102.  Combination  of  coalcarrying  railroads 
held  illegal.    U.  S.  v.  Reading  Co.,  226  U.  S.  324,  57  L.  Ed.  243, 

33  Sup.  Ct.  90,  modifying  decisions  in  same  styled  case,  183  Fed. 
427,  see  same  case,  228  U.  S.  158,  57  L.  Ed.  779,  33  Sup.  Ct. 
509.  A  conspiracy  to  run  a  corner  in  cotton  illegal.  United 
States  z:  Patten,  226  U.  S.  525,  57  L.  Ed.  333,  33  Sup.  Ct.  141, 
reversing  same  styled  case,  187  Fed.  664.  An  exclusive  sales 
agent  may  be  contracted  for.  Virtue  v.  Creamery  Package  Mfg. 
Co.,  227  U.  S.  8,  57  L.  Ed.  393,  33  Sup.  Ct.  202,  affirming  same 
styled  case,  179  Fed.  115,  102  C.  C.  A.  413.  A  combination  of 
manufacturers  of  different  non-competing  patented  machines 
not  illegal,  though  thereby  a  large  part  of  the  shoe  machinery 
business  is  placed  under  a  single  control.  U.  S.  v.  Winslow,  227 
U,  S.  202,  57  L.  Ed.  481,  33  Sup.  Ct.  253,  afifirming  same  styled 
case,  195  Fed.  578.  An  agreement  limiting  through  routes  and 
joint  rates  to  one  wharfage  company  illegal.  U.  S.  v.  Pacific  & 
Arctic  Ry.  &  Nav.  Co.,  228  U.  S.  87,  57  L.  Ed.  742,  33  Sup.  Ct. 
433  ;  the  patent  laws  do  not  give  the  right  to  limit  by  notice 
the  price  at  which  patented  articles  shall  be  resold.  Bauer  & 
Cie  V.  O'Donnell,  229  U.  S.  1,  57  L.  Ed.  1041,  33  Sup.  Ct.  616. 
The  statute  is  not  so  vague  as  to  be  void;  the  legality  of  the 
charges  given  the  jury  by  the  trial  judge  discussed.  Nash  v. 
U.  S.,  229  U.  S.  373,  57  L.  Ed.  1232,  33  Sup.  Ct.  780,  reversing 
same  styled  case,  186  Fed.  489,  108  C.  C.  A.  467,  and  see  U.  S. 
V.  Naval  Stores  Co.,  172  Fed.  455,  186  Fed.  592.  Copyright  laws 
do  not  protect  against  the  provisions  of  the  anti-trust  laws. 
Straus  V.  Am.  PubHshers'  Ass'n,  231  U.  S.  222,  58  L.  Ed.  192, 

34  Sup.  Ct.  84,  citing  Bobbs-Merrill  Co.  v.  Straus,  210  U.  S.  339, 
52  L.  Ed.  1086,  28  Sup.  Ct.  722  and  other  cases.  For  proceed- 
ings in  the  state  court  see :  Straus  v.  Am.  Publishers'  Ass'n,  177 
N.  Y.  473,  64  E-  R.  A.  701,  101  Am.  St.  Rep.  819,  69  N.  E.  1107; 
Straus  V.  Am.  Publishers'  Ass'n,  193  N.  Y.  496,  86  N.  E.  525 ; 
Straus  V.  Publishers'  Ass'n,  144  N.  Y.  548,  93  N.  E. 
1133.  Reports  sent  out  with  the  purpose  of  preventing 
the  members  of  an  association  from  dealing  with  certain 
persons  constitute  a  violation  of  the  statute.  Eastern  States  Re- 
tail Lumber  Dealers'  Ass'n  v.  U.  S.,  234  U.  S.  600,  58  L.  Ed. 
1490,  34  Sup.  Ct.  951,  af^rming,  U.  S.  v.  same,  201,  Fed.  581. 
A  state  anti-trust  law  sustained.  Waters-Pierce  Oil  Co.  v. 
Texas,  212  U.  S.  86,  53  L.  Ed.  417,  29  Sup.  Ct.  220,  affirming 
same  styled  case,  48  Tex.  Civ.  App.  163,  106  S.  W.  918;   Ham- 


A 


§  487.]  IN  Restraint  of  Trade.  693 

mond  Packing  Co.  v.  Arkansas,  212  U.  S.  322,  53  L.  Ed.  530,29 
Sup.  Ct.  370,  affirming  same  styled  case,  81  Ark.  519,  126  Am. 
St.  Rep.  1047,  100  S.  W.  407;  International  Harvester  Co.  v. 
Missouri,  234  U.  S.  199,  58  L.  Ed.  1276,  34  Sup.  Ct.  854,  af- 
firming same  styled  case,  237  "Slo.  369,  141   S.  W.  672. 

State  law  void  for  uncertainty.  International  Harvester  Co.  v. 
Kentucky,  234  U.  S.  216,  58  L.  Ed.  1284,  34  Sup.  Ct.  853,  re- 
versing. International  H.  Co.  t'.  Kentucky,  147  Ky.  564,  144  S. 
W.  1064,  1068,  1070;  International  H.  Co.  v.  Ky.,  147  Ky.  795, 
146  S.  W.  12,  148  Ky.  572,  147  S.  W.  1199;  Collins  v.  Kentucky, 
234  U.  S.  634,  58  L.  Ed.  1510,  34  Sup.  Ct.  924,  reversing  same 
styled  case,  141  Ky.  564,  133  S.  W.  233.    Judgment  for  damages 

sustained.     Lawlor  v.  Loewe,  236    U.  S.     522,  59  L.  Ed.  , 

35  Sup.  Ct.  170,  affirming,  Loewe  v.  Lawlor,  209  Fed.  721,  126 
C.  C.  A.  445.  The  Anti-Trust  Act  and  the  Commodity  Clause 
of  the  Interstate  Commerce  Act  are  "not  concerned  with  the  in- 
terests of  the  parties,  but  with  the  interest  oi  the  public."    U.  S. 

v.  Delaware,  L.  &  W.  R.  Co.,  238  U.  S.  516,  59  L.  Ed. ,  35 

Sup.  Ct.  873. 

§  487.  Monopolies  and  Conspiracies  and  Combinations 
to  Monopolize  Interstate  Trade  Illegal. — Every  person  who 
shall  monopolize,  or  attempt  to  monopolize,  or  combine  or  con- 
spire with  any  other  person  or  persons,  to  monopolize  any  part 
of  the  trade  or  commerce  among  the  several  states,  or  with  for- 
eign nations,  shall  be  deemed  guilty  of  a  misdemeanor,  and,  on 
conviction  thereof,  shall  be  punished  by  fine  not  exceeding  five 
thousand  dollars,  or  by  imprisonment  not  exceeding  one  year,  or 
by  both  said  punishments,  in  the  discretion  of  the  court. 

Section  two  of  the  act  July  2,  1890,  known  as  the  Sherman 
Anti-Trust  Law. 

What  an  indictment  for  violation  should  state.  L'nited  States 
V.  Greenhut,  50  Fed.  469.  1  Fed.  Anti-Trust  Dec.  30.  Re  Corn- 
ing, 51  Fed.  205,  1  Fed.  Anti-Trust  Dec.  33;  Re  Terrell,  51 
Fed.  213,  1  Fed.  Anti-Trust  Dec.  46;  United  States  v.  Patter- 
son, 59  Fed.  280,  1  Fed.  Anti-Trust  Dec.  244.  Does  not  prevent 
a  state  corporation  from  acquiring  title,  control  and  disposition 
of  property  in  the  several  states.  Re  Greene,  52  Fed.  104,  1 
Fed.  Anti-Trust  Dec.  54.  An  agreement  among  a  number  of 
luml)er  dealers -to  raise  the  price  fifty  cents  per  thousand,  not 
illegal  unless  it  includes  the  entire  traffic.  52  Fed.  646,  1  Fed. 
Anti-Trust  Dec.  77.     "Monopolize"  is  the  basis  of  the  statute 


694  Trust  AND  Other  Combinations  [§  488. 

and  merely  injuring  or  restraining  trade  not  prohibited.  United 
States  V.  Patterson,  55  Fed.  605,  640,  641,  1  Fed.  Anti-Trust 
Dec.  133,  176,  177.  A  purchaser  of  liquors  from  an  illegal  com- 
bination can  not  keep  the  goods  and  recover  the  price  paid,  even 
though  it  was  excessive.  Dennehy  v.  ^NIcNulta,  86  Fed.  825,  41 
L.  R.  A.  609,  30  C.  C.  A.  422,  1  Fed.  Anti-Trust  Dec.  855.  A 
contract  with  an  association  having  a  monopoly  of  the  commerce 
in  a  particular  commodity  by  which  it  agrees  ito  pay  a  dividend 
to  a  company  on  condition  that  such  company  would  close  its 
factory  for  a  year  is  contrary  to  public  policy  and  unlawful. 
Cravens  v.  Carter-Crume  Co.,  92  Fed.  479,  34  C.  C.  A.  479,  1 
Fed.  Anti-Trust  983.  Mere  attempts  to  monopolize  trade  not 
punishable,  combination  the  main  purpose  of  which  is  to  foster 
tracle  and  which  only  indirectly  or  incidentally  restricts  competi- 
tion not  illegal.  Whitwell  v.  Continental  Tobacco  Co.,  125  Fed. 
454,  60  C.C.  A.  290,  64  L.  R.  A.  689,  2  Fed.  Anti-Trust  Dec. 
271  ;  Phillips  V.  lola  Portland  Cement  Co.,  125  Fed.  593,  61  C. 
C.  A.  19,  2  Fed.  Anti-Trust  Dec.  284.  Petition  for  writ  of 
certiorari  denied.  192  U.  S.  606,  48  L.  Ed.  585,  24  Sup.  Ct. 
850.  A  demand  for  a  "closed  shop"  illegal.  Barnes  &  Co.  v. 
Berry,  156  Fed.  72.  "Monopoly"  defined.  Burrows  v.  Interur- 
ban  Metropolitan  Co.,  156  Fed.  389.  An  agreement,  however, 
between  mine  operators  not  to  employ  members  of  a  certain 
union  held  not  to  be  illegal.  Goldfield  Consolidated  Mines  Co. 
V.  Goldfield  Mines  Union,  159  Fed.  500.  Monopoly  by  efficiency 
is  not  illegal,  but  to  conspire  to  prevent  a  single  shipment  by  a 
competitor  is.     Patterson  v.  United  States  (Cash  Register  Case) 

222  Fed.  599, C.  C.  A. .     Illegal  to  fix  price  of  resale. 

United  States  v.  Kellogg  Toasted  Corn  Flake  Co.,  222  Fed.  725. 
Photo-play  films  shipped  in  interstate  commerce  subject  to  the 
act.  United  States  v.  M^otion  Picture  Patents  Co.,  225  U.  S. 
800.  Kodak  company  decreed  a  trust.  United  States  v.  East- 
man Kodak  Co.,  226  Fed.  62.  Coal  monopoly.  United  States 
V.  Reading  Co.,  226  Fed.  229. 

Notes  of  Decisions  Rendered  Since  1909. 

See  notes  next  preceding  section. 

§  488.  Prohibition  Applies  to  Territories  and  between 
States  and  Territories. — Every  contract,  combination  in  form 
of  trust  or  otherwise,  or  conspiracy,  in  restraint  of  trade  or  com- 


§  489.]  IN  Restraint  of  Trade.  695 

merce  in  any  territory  of  the  United  States  or  of  the  District  of 
Columbia,  or  in  restraint  of  trade  or  commerce  between  any  such 
territory  and  another,  or  between  any  such  territory  or  terri- 
tories and  any  state  or  states  or  the  District  of  Cohunbia,  or  with 
foreign  nations,  or  between  the  District  of  Columbia  and  any 
state  or  states  or  foreign  nations,  is  hereby  declared  illegal.  Every 
person  who  shall  make  any  such  contract  or  engage  in  any  such 
combination  or  conspiracy  shall  be  deemed  guilty  of  a  misde- 
meanor, and,  on  conviction  thereof,  shall  be  punished  by  fine  not 
exceeding  live  thousand  dollars,  or  by  imprisonment  not  exceed- 
ing one  year,  or  by  both  said  punishments,  in  the  discretion  of 
the  court. 

Section  three  of  the  act  July  2,  1890,  known  as  the  Sherman 
Anti-Trust  Act. 

Prosecution  begun  in  a  territorial  court  abates  upon  the  ad- 
mission of  the  territory  as  a  state.  Aloore  v.  United  States,  85 
Fed.  465,  29  C.  C.  A.  269,  1  Fed.  Anti-Trust  Dec.  815. 

§  489.  Courts  Given  Jurisdiction  to  Enjoin  Violation  of 
Act. — The  several  circuit  courts  of  the  United  States  are  hereby 
invested  with  jurisdiction  to  prevent  and  restrain  violations  of 
this  act ;  and  it  shall  be  the  duty  of  the  several  district  attorneys 
of  the  United  States,  in  their  respective  districts,  under  the  di- 
rection of  the  Attorney-General,  to  institute  proceedings  in  equity 
to  prevent  and  restrain  such  violations.  Such  proceedings  may 
be  by  way  of  petition  setting  forth  the  case  and  praying  that  such 
violation  shall  be  enjoined  or  otherwise  prohibited.  When  the 
parties  complained  of  shall  have  been  duly  notified  of  such  peti- 
,  tion  the  court  shall  proceed,  as  soon  as  may  be,  to  the  hearing 
and  determination  of  the  case;  and  pending  such  petition  and  be- 
fore final  decree  the  court  may  at  any  time  make  such  tempor-^ry 
restraining  order  or  prohibition  as  shall  be  deemed  just  in  the 
premises. 

Section  four  of  the  act  July  2,  1890,  known  as  the  Sherman 
Anti-Trust  Act. 

Preliminary  injunction  not  granted  when  bill  denied.  United 
States  V.  Jellico  Mountain  Coke  &  Coal  Co.,  43  Fed.  898,  1  Fed. 
Anti-Trust  Dec.  1.  Right  to  injunction  exists  only  in  favor  of 
the  government,  but  to  prevent  a  multiplicity  of  suits  an  indi- 
vidual may  sue  for  and  obtain  an  injunction.  Blindell  v.  Hagan, 
54  Fed.  40,  1   Fed.  Anti-Trust  Dec.   106.     Affirmed.     Ilagan  v. 


696  Trust  AND  Other  Combinations  [§  489. 

BHndell,  56  Fed.  696,  6  C.  C.  A.  86,  1  Fed.  Anti-Trust  Dec.  182. 
Injunction  may  be  granted  against  a  combination  of  laborers. 
United  States  v.  Workingman's  xAmalg.  Council,  54  Fed.  994, 
26  L.  R.  A.  158,  1  Fed.  Anti-Trust  Dec.  110.  Affirmed.  Work- 
ingman's Amalg.  Council  v.  United  States,  17  Fed.  85,  6  C.  C. 
A.  258,  1  Fed.  Anti-Trust  Dec.  184.  Injunction  order  binding 
on  one  not  named  in  the  bill  or  served  with  subpoena  if  served 
with  injunction  order.  United  States  v.  Agler,  62  Fed.  824,  1 
Fed.  Anti-Trust  Dec.  294.  May  sue  in  any  district  where  de- 
fendant found.  Dueber  Watch-Case  Mfg.  Co.  v.  Howard  Watch 
&  Clock  Co.,  66  Fed.  637,  14  C.  C.  A.  14,  1  Fed.  Anti-Trust  Dec. 
421.  Section  not  void.  United  States  v.  Elliott.  64  Fed.  27,  1 
Fed.  Anti-Trust  Dec.  311.  The  combination  described  not  il- 
legal and  federal  courts  can  not  enjoin  an  alleged  violation  of 
this  act  or  the  act  to  regulate  commerce.  United  States  v.  Joint 
Traffic  Asso.,  76  Fed.  895,  1  Fed.  Anti-Trust  Dec.  615.  Af- 
firmed. 89  Fed.  1020,  Zl  C.  C.  A.  491,  45  U.  S.  App.  726,  1  Fed. 
Anti-Trust  Dec.  869.  Reversed  on  both  points  following  the 
Trans-]\Iissouri  Freight  Asso.  Case  supra.  Same  style  case,  171 
U.  S.  505,  43  L.  Ed.  259,  19  Sup.  Ct.  25.  1  Fed.  Anti-Trust  Dec. 
869.  Applies  only  to  suits  by  the  government.  Greer,  Mills  & 
Co.  V.  Stoller,  77  Fed.  1,  1  Fed.  Anti-Trust  Dec.  620.  Suits  by 
the  United  States  rest  only  on  the  authority  of  the  act.  United 
States  V.  Addyston  Pipe  &  Steel  Co.,  78  Fed.  712,  1  Fed.  Anti- 
Trust  Dec.  631.  Reversed,  holding  a  bill  for  injunction  would 
lie  in  favor  of  either  the  government  or  a  private  individual.  85  ■ 
Fed.  271,  46  L.  R.  A.  122,  1  Fed.  Anti-Trust  Dec.  772.  Affirmed. 
Addyston  Pipe  &  Steel  Co.  v.  United  States,  175  U.  S.  211,  44 
L.  Ed.  136,  20  Sup.  Ct.  96,  1  Fed.  Anti-Trust  Dec.  1009.  Re- 
straining order  may  issue  without  notice.  United  States  v.  Coal 
Dealers'  Asso.,  85  Fed.  252,  1  Fed.  Anti-Trust  Dec.  749.  Prin- 
ciples upon  which  injunction  should  be  granted  stated  in  a  case 
growing  out  of  United  States  v.  Northern  Securities  Co.  Case. 
Harriman  v.  Northern  Securities  Co.,  132  Fed.  464,  2  Fed.  Anti- 
Trust  Dec.  587.  Reversed.  Northern  Securities  Co.  v.  Harri- 
man, 134  Fed.  331,  67  C.  C.  A.  245,  2  Fed.  Anti-Trust  Dec.  618. 
Circuit  court  of  appeals  affirmed,  holding  that  property  delivered 
under  an  executed  contract  of  sale  can  not  be  recovered  by  one 
in  pari  delicto.  Harriman  z'.  Northern  Securities  Co.,  197  U.  S. 
244,  49  L.  Ed.  739,  25  Sup.  Ct.  493,  2  Fed.  Anti-Trust  Dec.  669. 


§  490.]  IN  Restraint  op  Trade.  697 

Prior  to  Elkins  Act,  Feb.  19,  1903,  a  circuit  court  had  no  juris- 
diction to  enjoin  the  granting  of  rebates,  although  the  giving  of 
the  rebate  was  alleged  to  be  in  violation  of  xAnti-Trust  Act. 
United  States  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  142  Fed.  176, 
2  Fed.  Anti-Trust  Dec.  831.  Private  parties  may  obtain  an  in- 
junction against  a  violation  from  which  they  suffer  special  in- 
jury. Bigelow  z'.  Calumet  &  Hecla  Mining  Co.,  155  Fed.  869, 
167  Fed.  704.  Affirmed,  not  discussing  this  point,  167  Fed.  721, 
94  C.  C.  A.  13.  Same  rule  under  a  state  law.  Continental  Se- 
curities Co.  v.  Interborough  R.  T.  Co.,  165  Fed.  945. 

Notes  of  Decisions  Rendered  Since  1909. 

A'iolations  of  an  injunction  decree  punished.  U.  S.  v.  South- 
ern Wholesale  Grocers'  Ass'n,  207  Fed.  434.  Injunctive  relief 
can  be  granted  only  at  the  suit  of  the  government.  Irving  v. 
Neal,  209  Fed.  471 ;  National  Fireproofing  Co.  v.  Masons'  Build- 
ers' Ass'n,  169  Fed.  259,  94  C.  C.  A.  535,  26  L.  R.  A.  (N.  S.) 
148;  Greer  v.  Staller,  77  Fed.  1;  Minnesota  v.  North  Security 
Co.,  194  U.  S.  48,  48  L.  Ed.  870,  24  Sup.  Ct.  598;  Paine  Lumber 
Co.  V.  Neal,  212  Fed.  259;  Paine  Lumber  Co.  v.  Neal.  214  Fed. 
82,  130  C.  C.  A.  522,  but  said  the  conrt  in  212  Fed.  259,  268 
supra :  "The  courts  have  time  and  again  extended  the  equity 
arm  to  prevent  the  Commission  or  continuance  of  injury  directed 
against  particular  persons,  and  have  protected  employers  against 
violence  any  sympathetic  strikes."  See  also  Jones  v.  Van  Winkle, 
131  Ga.  336,  6>2  S.  E.  236,  following  Irving  v.  Neal  &  Lawler 
Co.  v.  Neal  supra:  Gill  Engraving  Co.  z>.  Doerr,  214  Fed.  Ill, 
118;  Mitchell  v.  Hitchman  Coal  &  Coke  Co.,  214  Fed.  685,  714. 
One  who  has  in  good  faith  withdrawn  from  the  conspiracy  not 
a  proper  party.  U.  S.  v.  E.  I.  Dupont  De  Nemours  &  Co.,  188 
Fed.  127.  Proper  parties  to  suit  for  injunction  discussed.  U.  S. 
V.  Reading  Co.,  226  U.  S.  324,  57  L.  Ed.  243,  33  Sup.  Ct.  90,  cit- 
ing, Simpkins  Fed.  Suit  290  ct  seq.  and  modifying  same  styled 
case,  183  Fed.  427.  See  also  same  case,  228  U.  S.  158,  57  L.  Ed. 
779,  33  Sup.  Ct.  509.  see  also  188  Fed.  127  supra. 

§  490.  Practice  with  Reference  to  Parties  and  Service 
of  Subpoena  Thereon. — Whenever  it  shall  appear  to  the  court 
before  which  any  proceeding  under  section  four  of  this  act  may 
be  pending  that  the  ends  of  justice  rec|uire  that  other  parties 
should  be  brought  before  the  court,  the  court  may  cause  them 


698  Trust  and  Other  Combinations  [§  491. 

to  be  summoned,  whether  tliey  reside  in  the  district  in  which  the 
court  is  held  or  not;  and  siibpa-Jias  to  that  end  may  be  served  in 
any  district  by  the  marshal  thereof. 

Section  five  of  the  act  July  2,  1890,  known  as  the  Sherman 
Anti-Trust  Act. 

Injunction  order  may  be  enforced  against  defendants,  within 
the  scope  of  the  order,  though  not  named  in  the  bill,  such  de- 
fendants being  parties  to  the  conspiracy.  United  States  v.  El- 
liott, 64  Fed.  27,  1  Fed.  Anti-Trust  Dec.  311.  Can  not  bring 
in  non-residents  of  the  district  at  suit  by  others  than  the  gov- 
ernment. Greer,  ]\Iills  &  Co.  v.  Stoller,  77  Fed.  1,  1  Fed.  Anti- 
Trust  Dec.  620.  Xon-residents  of  the  state  may  be  brought  in 
as  defendants.  United  States  z\  Standard  Oil  Co.  of  Xew  Jer- 
sey, 152  Fed.  290;  United  States  z:  X'irginia-Carolina  Chemical 
Co.,  163  Fed.  66;  Northern  Pac.  R.  Co.  r.  Pacific  C.  L.  Mfg. 
Asso.,  165  Fed.  1,  9,  91  C.  C.  A.  39. 

§  491.  Property  Owned  under  a  Contract  Violating  This 
Act  being-  in  Course  of  Interstate  Transportation  May  Be 
Seized  and  Forfeited. — Any  [jroperty  owned  under  any  contract 
or  by  any  combination,  or  pursuant  to  any  conspiracy  ( and  being 
the  subject  thereof)  mentioned  in  section  one  of  this  act,  and 
being  in  the  course  of  transportation  from  one  state  to  another, 
or  to  a  foreign  country,  shall  be  forfeited  to  the  United  States, 
and  may  be  seized  and  condemned  by  like  proceedings  as  those 
provided  by  law  for  the  forfeiture,  seizure,  and  condemnation 
of  property  imported  into  the  United  States  contrary  to  law. 

Section  six  of  act  July  2,  1890,  known  as  the  Sherman  Anti- 
Trust  Act. 

No  seizure  can  be  had  of  goods  at  the  suit  of  the  United  States 
except  of  property  imported  into  the  United  States  contrary  to 
act.  United  States  v.  Addyston  Pipe  &  Steel  Co.,  85  Fed.  271, 
29  C.  C.  A.  141,. 46  L.  R.  A.  122,  1  Fed.  Anti-Trust  Dec.  772. 
Affirmed,  without  discussion  of  the  question.  Addyston  Pipe 
&  Steel  Co.  z:  United  States.  175  U.  S.  211,  44  L.  Ed.  136,  20 
Sup.  Ct.  96,  1  Fed.  Anti-Trust  Dec.  1009. 

§  492.  Measure   of   Damages   in   Favor   of   Persons   In- 
jured.— Any   person    who   shall    be   injured    in    his    business   or 
property  by  any  other  person  or  corporation  by  reason  of  any- 
thing forbidden  or  declared  to  be  unlawful  by  this  act,  may  suej 
therefor  in  anv  circuit  court  of  the  United  States  in  the  district' 


§  492.]  IN  Re;straint  of  Trade.  699 

in  which  the  defendant  resides  or  is  found,  without  respect  to 
the  amount  in  controversy,  and  shall  recover  threefold  the  dam- 
ages by  him  sustained,  and  the  costs  of  suit,  including  a  reason- 
able attorney's  fee. 

Section  seven  of  act  July  2,  1890,  known  as  the  Sherman  Anti- 
Trust  Act. 

A  person  who  has  sold  his  business  to  an  illegal  combination 
can  not  recover  under  this  act.  In  suits  for  damages  complaint 
must  allege  that  the  matters  out  of  which  the  suit  grows  consti- 
tute interstate  commerce.  Bishop  v.  Am.  Preservers'  Co.,  51 
Fed.  272,  1  Fed.  Anti-Trust  Dec.  49.  Must  not  only  allege  that 
the  business  damaged  was  interstate  commerce  but  that  the  en- 
tire market  was  controlled.  Dueber  Watch  Case  Mfg.  Co.  v. 
Howard  Watch  &  Clock  Co.,  55  Fed.  851,  1  Fed.  Anti-Trust  Dec. 
178.  Affirmed,  same  style  case,  66  Fed.  637,  14  C.  C.  A.  14,  1 
Fed.  Anti-Trust  Dec.  421.  The  private  shipper  can  not  obtain 
a  mandatory  writ  to  compel  the  carrier  to  grant  a  right,  though 
a  circuit  court,  as  a  court  of  equity,  can  afiford  preventative  re- 
lief in  addition  to  damages.  Gulf  C.  &  S.  F.  Ry.  Co.  v.  Miami 
S.  S.  Co.,  86  Fed.  407,  421,  30  C.  C.  A.  142,  1  Fed.  Anti-Trust 
Dec.  823,  842,  843.  Remedy  for  damages  exclusive  and  a  private 
person  can  not  maintain  equitable  proceedings  to  enforce  the 
law.  So.  Ind.  Express  Co.  v.  United  States  Express  Co.,  88  Fed. 
659,  1  Fed.  Anti-Trust  Dec.  862.  Affirmed.  92  Fed.  1022,  35 
C.  C.  A.  172,  1  Fed.  Anti-Trust  Dec.  992;  Block  v.  Standard 
Distilling  and  Distributing  Co.,  95  Fed.  978,  1  Fed.  Anti-Trust 
Dec.  993.  Limitation  of  time  in  which  to  bring  suit  is  governed 
by  the  law  of  the  state  in  which  suit  is  brought.  Atlanta  v. 
Chattanooga  Foundry  &  Pipe  Co.,  101  Fed.  900,  2  Fed.  Anti- 
Trust  Dec.  11.  Reversed,  same  style  case,  127  Fed.  23,  61  C.  C. 
A.  387,  64  L.  R.  A.  721,  2  Fed.  Anti-Trust  Dec.  299.  Affirmed. 
Chattanooga  Foundry  &  Pipe  Co.  v.  Atlanta,  203  U.  S.  390. 
51  L.  Ed.  241,  27  Sup.  Ct.  65.  To  recover  must  not  only  show 
illegal  combination  but  that  plaintiff  has  suffered  damages,  that 
a  combination  of  dealers  sent  out  circulars  denouncing  a  dealer 
outside  the  combination  .who  sold  in  other  states  whereby  his 
business  is  injured  authorized  a  recovery.  Gibbs  v.  McNeely, 
102  Fed.  594,  2  Fed.  Anti-Trust  Dec.  25.  No  recovery  for  sales 
in  the  state.  Same  case,  107  Fed.  210,  2  Fed.  Anti-Trust  Dec. 
71.     Reversed,  same  case,  118  Fed.  120,  55  C.  C.  A.  70.  60  E.  R. 


700  Trust  AND  Other  Combinations  [§  492. 

A.  152,  2  Fed.  Anti-Trust  Dec.  194,  holding  that  though  an 
agreement  does  not  refer  to  interstate  trade,  it  is  within  the  act 
if  its  purpose  and  effect  is  to  restrain  such  trade.  A  party  to 
an  illegal  combination  can  not  recover  damages  against  the  com- 
bination for  acts  growing  out  of  the  contract  creating  the  com- 
bination. Bishop  V.  American  Preservers"  Co.,  105  Fed.  845,  1 
Fed.  Anti-Trust  Dec.  51.  Damages  recoverable  and  attorney's 
fees  in  discretion  of  trial  court.  Lowry  v.  Tile  Mantel  &  Grate 
Asso.,  106  Fed.  38,  2  Fed.  Anti-Trust  Dec.  'oZ.  Affirmed.  Mon- 
tague V.  Lowry,  115  Fed.  27,  S2  C.  C.  A.  621,  2  Fed.  Anti-Trust 
Dec.  112,  193  U.  S.  38.  48  L.  Ed.  608.  24  Sup.  Ct.  307,  2  Fed. 
Anti-Trust  Dec.  Z27 .  A  minority  stockholder,  alleging  the  cor- 
poration has  transferred  its  property  to  an  illegal  combination, 
can  not  obtain  an  injunction  against  the  transfer  and  damages 
in  the  same  suit.  Metcalf  v.  American  School  Furniture  Co., 
108  Fed.  909,  2  Fed.  Anti-Trust  Dec.  7S.  Affirmed.  113  Fed. 
1020,  51  C.  C.  A.  599,  2  Fed.  Anti-Trust  Dec.  111.  Bill  dis- 
missed. 122  Fed.  115,  2  Fed.  Anti-Trust  Dec.  234.  Only  actual 
damages  can  be  recovered.  Rule  as  to  loss  of  profits  stated. 
Central  Coal  &  Coke  Co.  v.  Hartman.  Ill  Fed.  96,  49  C.  C.  A. 
2-14,  2  Fed.  Anti-Trust  Dec.  94.  Damages  can  not  be  recovered 
because  a  company  refuses  to  sell  its  goods,  unless  the  purchaser 
refuses  to  deal  with  independent  companies,  the  defendant  owing 
no  duty  to  sell  its  products  to  plaintiff".  Whitwell  v.  Continental 
Tob.  Co.,  125  Fed.  454,  60  C.  C.  A.  290.  64  L.  R.  A.  689,  2  Fed. 
Anti-Trust  Dec.  271.  Petition  for  damages  must  definitely  de- 
scribe the  combination  and  conspiracy.  Rice  v.  Standard  Oil 
Co.,  134  Fed.  464,  2  Fed.  Anti-Trust  Dec.  633.  Rule  as  to 
measure  of  damages  and  burden  of  proof.  Loder  v.  Jayne,  142 
Fed.  1010,  2  Fed.  Anti-Trust  Dec.  976.  Reversed.  Jayne  v. 
Loder,  149  Fed.  21,  78  C.  C.  A.  653,  7  L.  R.  A.  (N.  S. )  984.  In 
a  suit  for  damages  under  this  section,  the  allegations  should  be 
specific.  Cilley  v.  United  Shoe  Mach.  Co.,  152  Fed.  726.  One 
who  is  harmed  in  business  or  property  may  recover.  W'heeler- 
Stenzel  Co.  v.  National  Window  Glass  Jobbers'  Asso.,  152  Fed. 
864,  81  C.  C.  A.  658.  A  purchase  of  a  competing  refining  com- 
pany in  order  to  monopolize  the  refining  of  sugar  not  illegal. 
Penn.  Sugar  Refining  Co.  v.  American  Sugar  Refining  Co.,  160 
Fed.  144.  Reversed,  same  style  case,  166  Fed.  254,  92  C.  C.  A. 
318.     No  right  of  action  when  merely  prevented  from  embarking 


§  492. J  IN  Restraint  of  Trade.  701 

on  a  new  business.  American  Banana  Co.  r.  United  Fruit  Co., 
160  Fed.  184.  Afifirmed,  same  style  case,  166  Fed.  261,  92  C.  C. 
A.  325,  213  U.  S.  347.  53  L.  Ed.  826,  29  Sup.  Ct.  511.  Allega- 
tion held  sufficient.  Monarch  Tob.  Works  z'.  American  Tob.  Co., 
165  Fed.  774.  Limitation  law  of  the  state  in  which  suit  is 
brought  applies.  Chattanooga  Foundry  &  Pipe  Works  v.  At- 
lanta, 203  U.  S.  390.  51  L.  Ed.  241.  27  Sup.  Ct.  65. 

Notes  of  Decisions  Rendered  Since  1909. 

Remedy  of  a  private  individual  is  by  suit  for  damages.  Na- 
tional Fire  Proofing  Co.  v.  Mason  Builders'  xAss'n,  169  Fed.  259, 
94  C.  C.  A.  535  and  cases  following  that  case.  Sec.  803  supra. 
Pleadings  liberal  in  suits  for  damages.  Ware-Kramer  Tobacco 
Co.  v.  Am.  Tob.  Co.,  178  Fed.  117;  Hale  v.  O'Connor  Coal  Sup- 
ply Co.,  181  Fed.  267. 

That  one  of  the  purposes  of  the  conspiracy  is  to  increase  rates 
the  reasonableness  of  which  has  not  been  passed  on  by  the  In- 
terstate Commerce  Commission  is  no  defense.  Meeker  z'.  Lehigh 
A'alley  R.  Co..  183  Fed.  548,  106  C.  C.  A.  94,  reversing  Meeker 
z\  Lehigh  \'.  R.  Co..  175  Fed.  320.  The  right  of  action  for  caus- 
ing bankruptcy  of  a  corporation  is  in  its  trustee  in  bankruptcy, 
not  in  a  stockholder.  Loeb  z'.  Eastman  Kodak  Co.,  183  Fed.  704, 
106  C.  C.  A.  142;  Corey  z:  Independent  Ice  Co.,  207  Fed.  459; 
Fleitmann  z'.  L'nited  Gas  Improvement  Co.,  211  Fed.  103. 

Facts  here  pleaded  state  a  cause  of  action  and  the  remedy 
given  by  the  act  is  a  civil  remedy.  Strout  v.  L^nited  Shoe  ^la- 
chinery  Co.,  195  Fed.  313.  same  style  case,  202  Fed.  602. 

What  must  be  alleged  and  proved.  Buckeye  Powder  Co.  z'. 
E.  I.  Du  Pont  De  Nemours  Powder  Co..  196  Fed.  514. 

Alleging  different  things  forbidden  by  Sections  1  and  2  does 
constitute  duplicitous  ])leading.  Cilley  ■c'.  Shoe  Mach.  Co.,  202 
Fed.  598.  Facts  here  sufficient  to  entitle  a  jury  to  pass  thereon. 
Hale  v.  Hatch  &  North  Coal  Co..  204  Fed.  433.  122  C.  C.  A. 
619.  Specific  injury  must  be  proved.  Motion  Picture  Patents 
Co.  v.  Eclair  Film  Co.,  208  Fed.  416.  Charge  of  the  court  to  the 
jury  discussed.  Lawlor  z'.  Loewe,  209  Fed.  721,  126  C.  C.  A. 
445.  Affirmed  Loewe  z'.  Lawlor,  236  U.  S.  522,  59  L.  Ed.  — , 
35  Sup.  Ct.  170.  Damages  may  be  recovered  although  some  of 
the  business  affected  is  intrastate  commerce  and  although  the  par- 
ties to  the  conspiracy  are  not  themselves  engaged  in   interstate 


702  Trust  AND  Other  Combinations  [§493. 

commerce.  Loewe  v.  Lawlor,  208  U.  S.  274,  52  L.  Ed.  488,  28 
Sup.  Ct.  301,  and  see  Lawlor  z-.  Loewe,  209  Fed.  721,  126  C.  C. 
A.  445.  same  styled  case,  187  Fed.  522,  109  C.  C.  A.  288,  writ 
of  certiorari  denied.  Loewe  v.  Lawlor,  223  U.  S.  729,  56  L.  Ed. 
633,  32  Sup.  Ct.  527,  and  notes  in  L.  R.  A.  (X.  S.)  97,  23  L.  R. 
A.  (X.  S.)  1263.  26  L.  R.  A.  (X.  S.)  153.  1  Brit.  Rul.  Cas.  281. 

§  493.  Person  Includes  Corporation  and  Association. — 
That  the  word  "person,"  or  "persons,"  wherever  used  in  this 
act  shall  he  deemed  to  include  corporations  and  associations  ex- 
isting under  or  -authorized  by  the  laws  of  either  the  United  States, 
the  laws  of  any  of  the  territories,  the  laws  of  any  state,  or  the 
laws  of  any  foreign  country. 

Section  eight  of  the  act  of  July  2,  1890,  known  as  the  Sherman 
Anti-Trust  Act. 

Corporations  may  be  indicted.  L^nited  States  zk  ]\IacAndrews 
c^  Forbes  Co..  149  Fed.  823.  836. 

§  494.  Act  of  August  28,  1894,  So  Far  as  It  Relates  to 
Trusts  and  Combinations  in  Restraint  of  Trade. — Sec.  73. 
That  every  combination,  conspiracy,  trust,  agreement,  or  con- 
tract, is  hereby  declared  to  be  contrary  to  public  policy,  illegal, 
and  void,  when  the  same  is  made  by  or  between  two  or  more  per- 
sons or  corporations  either  of  w^iom  as  agent  or  principal  is  en- 
gaged in  importing  any  article  from  -any  foreign  country  into 
the  United  States,  and  when  such  combination,  conspiracy,  trust, 
agreement,  or  contract  is  intended  to  operate  in  restraint  of  law- 
ful trade,  or  free  competition  in  lawful  trade  or  commerce,  or 
to  increase  the  market  price  in  any  part  of  the  United  States  of 
any  article  or  articles  imported  or  intended  to  be  imported  into 
the  L'nited  States,  or  of  any  manufacture  into  which  such  im- 
ported article  enters  or  is  intended  to  enter.  Every  person  is  or 
shall  hereafter  be  engaged  in  the  importation  of  goods  or  any 
commodity  from  any  foreign  country  in  violation  of  this  section 
of  this  -act.  or  who  shall  comljine  or  conspire  with  another  to 
violate  the  same,  is  guilty  of  a  misdemeanor,  and,  on  conviction 
thereof  in  any  court  of  the  United  States,  such  person  shall  be 
fined  in  a  sum  not  less  than  one  hundred  dollars  and  not  exceed- 
ing five  thousand  dollars,  and  shall  be  further  punished  by  im- 
prisonment, in  the  discretion  of  the  court,  for  a  term  not  less  than 
three  months  nor  exceeding  twelve  months. 

Sec.  74.     That  the  several  circuit  courts  of  the  United  States 


§  494.]  IN  Restraint  of  Trade.  703 

are  hereby  invested  with  jurisdiction  to  prevent  and  restrain  vio- 
lations of  section  seventy-three  of  this  act;  and  it  shall  be  the 
duty  of  the  several  district  attorneys  of  the  United  States,  in 
their  respective  districts  under  the  direction  of  the  Attorney- 
General,  to  institute  proceedings  in  equity  to  prevent  and  re- 
strain such  violations.  Such  proceedings  may  be  by  way  of  peti- 
tions setting  forth  the  case  and  praying  that  such  violations 
shall  be  enjoined  or  otherwise  prohibited.  When  the  parties 
complained  of  shall  have  been  duly  notified  of  such  petition  the 
court  shall  proceed,  as  soon  as  may  be,  to  the  hearing  and  de- 
termination of  the  case;  and  pending  such  petition  and  before 
final  decree,  the  court  may  at  any  time  make  such  temporary  re- 
straining order  or  prohibition  as  shall  be  deemed  just  in  the 
premises. 

Sec.  7?.  That  whenever  it  shall  appear  to  the  court  before 
which  any  proceeding  under  the  seventy-fourth  section  of  this 
act  may  be  pending,  that  the  ends  of  justice  require  that  other 
parties  should  be  brought  before  the  court,  the  court  may  cause 
them  to  be  summoned,  whether  they  reside  in  the  district  in 
which  the  court  is  held  or  not ;  and  subpoenas  to  that  end  may  be 
served  in  any  district  by  the  marshal  thereof. 

Sec.  76.  That  any  property  owned  under  any  contract  or  by 
any  combination,  or  pursuant  to  any  conspiracy  ( and  being  the 
subject  thereof )  mentioned  in  section  seventy-three  of  this  act, 
imported  into  and  being  within  the  United  States  or  being  in  the 
course  of  transportation  from  one  state  to  another,  or  to  or  from 
a  territory,  or  the  District  of  Columbia,  shall  be  forfeited  to  the 
United  States,  and  may  be  seized  and  condemned  by  like  pro- 
ceedings as  those  provided  by  law  for  the  forfeiture,  seizure, 
and  condemnation  of  property  imported  into  the  United  States 
contrary  to  law. 

Sec.  77 .  Thai  any  person  who  shall  l)e  injured  in  his  business 
or  projierty  Ijy  any  other  person  or  corporation  Ijy  reason  of  any- 
thing forbidden  or  declared  to  be  unlawful  by  this  act  may  sue 
therefor  in  any  circuit  court  of  the  United  States  in  the  district 
in  which  the  defendant  resides  or  is  found,  without  res])ect  to  the 
amount  in  controversy,  and  shall  recover  threefold  the  damages 
by  him  sustained,  and  the  costs  of  suit,  including  a  reasonable 
attorney's  fee. 

Received  liy  llic  I'resident,  August   15,  1894. 


704  Trust  and  Other  Combinations  [§  495. 

[Note  by  the  Department  of  State. — The  foregoing  act  having 
been  presented  to  the  President  of  the  United  States  for  his 
approval,  and  not  having  been  returned  by  him  to  the  house  of 
Congress  in  which  it  originated  within  the  time  prescribed  by 
the  Constitution  of  the  United  States,  has  become  a  law  without 
his  approval.) 

Act  of  July  24,  1897,  §  34. 

*  '•'  *  *       And    provided    further,    that    nothing 

in  this  act  shall  be  construed  to  repeal  or  in  any  manner  afifect 
the  sections  numbered  73,  74,  75,  76  and  77  of  an  act  entitled 
"An  act  to  reduce  taxation,  to  provide  revenue  for  the  govern- 
ment, and  for  other  purposes,"'  which  became  a  law  on  the 
twenty-eighth  day  of  August,  1894. 

Section  73  and  76  quoted  in  the  section  above  were  amended 
by  the  act  of  Feb.  12,  1913,  37  Stat.  667,  Chap.  40.  by  adding  to 
Sec.  73  the,  words  "as"'  agent  or  "principal'"  and  to  Sec.  76  the 
words  "im,ported  into  and  being  within  the  United  States." 
Section  11  of  the  Panama  Canal  Act,  act  Aug.  24,  1912,  37  Stat. 
560,  567,  Chap.  390,  provides:  "No  vessel  permitted  to  engage 
in  the  coastwise  or  foreign  trade  of  the  United  States  shall  be 
permitted  to  enter  or  pass  through  said  canal,  if  such  ship  is 
owned,  chartered  or  operated,  or  controlled  by  any  person  or 
company  which  is  doing  business-in  violation  of  any  of  the  anti- 
trust acts"  and  "The  question  of  fact  may  be  determined  by  the 
judgment  of  any  court  of  the  United  States  of  competent  juris- 
diction in  any  cause  pending  before  it  to  which  the  owners  or 
operators  of  such  ships  are  parties.  Suit  may  be  brought  by  any 
shipper  or  by  the  Attorney-General  of  the  United  States." 

§  495.  Clayton  Act — Definitions. — That  "anti-trust  laws," 
as  used  herein,  includes  the  act  entitled  "An  act  to  protect  trade 
and  commerce  against  unlawful  restraints  and  monopolies,"  ap- 
])roved  July  second,  eighteen  hundred  and  ninety;  sections 
seventy-three  to  seventy-seven,  inclusive,  of  an  act  entitled  "an 
act  to  reduce  taxation,  to  provide  revenue  for  the  Government, 
and  for  other  purposes,"'  of  .August  twenty-seventh,  eighteen 
hundred  and  ninety-four;  an  act  entitled  "An  act  to  amend  sec- 
tions seventy-three  and  seventv-six  of  the  act  of  August  twenty- 
seventh,  eighteen  hundred  and  ninety-four,  entitled  ".\n  act  to 
reduce  taxation,  to  provide  revenue  for  the  Government,  and 
for  other  purposes,""  approved  February  twelfth,  nineteen  hun- 
dred and  thirteen  ;  and  also  this  act. 


§  496.]  IN  Restaixt  of  TRAnE.  705 

"Commerce,"  as  used  herein,  means  trade  or  commerce  among 
the  several  states  and  with  foreign  nations,  or  between  the  Dis- 
trict of  Cohimbia  or  any  territory  of  the  United  States  and  any 
state,  territory,  or  foreign  nation,  or  between  any  insular  pos- 
sessions or  other  places  under  the  jurisdiction  of  the  United 
States,  or  between  any  such  possession  or  place  and  any  state  or 
territory  of  the  United  States  or  the  District  of  Columbia  or 
any  foreign  nation,  or  within  the  District  of  Columbia  or  any 
territory  or  any  insular  possession  or  other  place  under  the  jurisdic- 
tion of  the  United  States :  Provided,  That  nothing  in  this  act 
contained  shall  apply  to  the  Phillippine  Islands. 

The  word  "person"  or  "persons"  wherever  used  in  this  act 
shall  be  deemed  to  include  corporations  and  associations  existing 
under  or  authorized  by  the  laws  of  either  the  United  States,  the 
laws  of  any  of  the  territories,  the  laws  of  any  state,  or  the  laws 
of  any  foreign  country. 

Section  one  of  Clayton  Act  approved  Oct.  15,  1914, ,  Stat. 

,  Public  No.  212,  63rd  Congress. 

§  496.  Price  Discrimination  Prohibited. — That  it  shall  be 
unlawful  for  any  person  engaged  in  commerce,  in  the  course  of 
such  commerce,  either  directly  or  indirectly  to  discriminate  in 
price  between  different  purchasers  of  commodities,  which  com- 
modities are  sold  for  use,  consumption,  or  resale  within  the  United 
States  or  any  territory  thereof  or  the  District  of  Columbia  or 
any  insular  possession  or  other  place  under  the  jurisdiction  of 
the  United  States,  where  the  effect  of  such  discrimination  may  be 
to  substantially  lessen  competition  or  tend  to  create  a  monopoly 
in  any  line  of  commerce :  Provided,  That  nothing  herein  con- 
tained shall  prevent  discrimination  in  price  between  purchasers 
of  commodities  on  account  of  differences  in  the  grade,  quality, 
or  cjuantity  of  the  commodity  sold,  or  that  makes  only  due  al- 
lowance for  difference  in  the  cost  of  selling  or  transportation, 
or  discrimination  in  price  in  the  same  or  different  communities 
made  in  good  faith  to  meet  competition :  And  provided  further, 
That  nothing  herein  contained  shall  prevent  persons  engaged  in 
selling  goods,  wares,  or  merchandise  in  commerce  from  select- 
ing their  own  customers  in  bona  fide  transactions  and  not  in 
restraint  of  trade. 

Sec.  2  Clayton  Act. 

§  497.  Lease  or  Sale  of  Patented  Articles. — That  it  shall 


706  Trust   and   Other   Combinations  [§  498. 

be  unlawful  for  any  person  engaged  in  commerce,  in  the  course 
of  such  commerce,  to  lease  or  make  a  sale  or  contract  for  sale 
of  goods,  wares,  merchandise,  machinery,  supplies  or 
other  commodities,  whether  patented  or  unpatented,  for  use, 
consum])tion  or  resale  within  the  United  States  or  any  territory 
thereof  or  the  District  of  Columbia  or  any  insular  possession  or 
other  place  under  the  jurisdiction  of  the  United  States,  or  fix  a 
price  charged  therefor,  or  discount  from,  or  rebate  upon,  such 
price,  on  the  condition,  agreement  or  understanding  that  the 
lessee  or  purchaser  thereof  shall  not  use  or  deal  in  the  goods, 
wares,  merchandise,  machinery,  supplies  or  other  commodities  of 
a  competitor  or  competitors  of  the  lessor  or  seller,  where  the 
effect  of  such  lease,  sale,  or  contract  for  sale  or  such  condition, 
agreement  or  understanding  may  substantially  lessen  compe- 
tition or  tend  to  create  a  monopoly  in  any  line  of  commerce. 

Sec.  3  Clayton  .\ct. 

§  498.  Damages  May  Be  Recovered  by  Person  Injured. — 
That  any  person  who  shall  be  injured  in  his  business  or  prop- 
erty by  reason  of  anything  forbidden  in  the  anti-trust  laws  may 
sue  therefor  in  any  district  court  of  the  United  States  in  the 
district  in  which  the  defendant  resides  or  is  found  or  has  an 
agent,  without  respect  to  the  amount  in  controversy,  and  shall 
recover  threefold  the  damages  by  him  sustained,  and  the  cost  of 
suit,  including  a  reasonable  attorney's  fee. 

Sec.  4  Clayton  Act.  Cited  Buckeye  Powder  Co.  i'.  E.  I.  Du 
Pont  de  Nemours  Powder  Co.,  223  Fed.  881,  884. 

§  499.  Effect  of  Final  Judgments  in  Criminal  Prosecu- 
tion.— That  a  final  judgment  or  decree  hereafter  rendered  in 
any  criminal  prosecution  or  in  any  suit  or  proceeding  in  equity 
brought  by  or  on  behalf  of  the  United  States  under  the  anti-trust 
laws  to  the  effect  that  a  defendant  has  violated  said  laws  shall  be 
prima  facie  evidence  against  such  defendant  in  any  suit  or  pro- 
ceeding brought  by  any  other  party  against  such  defendant  under 
said  laws  as  to  all  matters  respecting  which  said  judgment  or 
decree  would  be  an  estoppel  as  between  the  parties  thereto : 
Provided,  This  section  shall  not  apply  to  consent  judgments  or 
decrees  entered  before  any  testimony  has  been  taken :  Provided 
further,  This  section  shall  not  apply  to  consent  judgments  or 
decrees  rendered  in  criminal  proceedings  or  suits  in  equity,  now 
pending,  in  which  the  taking  of  testimony  has  been  commenced 


§  500.]  IN  Restraint  of  Tradi5.  707 

but  has  not  been  concluded,  provided  such  judgments  or  decrees 
are  rendered  before  any  further  testimony  is  taken. 

Whenever  any  suit  or  proceeding  in  equity  or  criminal  prose- 
cution is  instituted  by  the  United  States  to  prevent,  restrain  or 
punish  violations  of  any  of  the  anti-trust  laws,  the  running  of 
the  statute  of  limitations  in  respect  of  each  and  every  private 
right  of  action  arising  under  said  laws  and  based  in  whole  or 
in  part  on  any  matter  complained  of  in  said  suit  or  proceeding 
shall  be  suspended  during  the  pendency  thereof. 

Sec.  5     Clayton  Act. 

§  500.  Labor  Not  a  Commodity. — That  the  labor  of  a  hu- 
man being  is  not  a  commodity  or  article  of  commerce.  Nothing 
contained  in  the  anti-trust  laws  shall  be  construed  to  forbid  the 
existence  and  operation  of  labor,  agricultural,  or  horticultural 
organizations,  instituted  for  the  purposes  of  mutual  help,  and  not 
having  capital  stock  or  conducted  for  profit,  or  to  forbid  or  re- 
strain individual  members  of  such  organizations  from  lawfully 
carrying  out  the  legitimate  objects  thereof ;  nor  shall  such  organ- 
izations, or  the  members  thereof,  be  held  or  construed  to  be  illegal 
combinations  or  conspiracies  in  restraint  of  trade,  under  the  anti- 
trust laws. 

Sec.  6  Clayton  Act. 

§  501.  Acquisition  by  a  Corporation  of  Stock  in  Another 
Corporation,  When  Prohibited. — That  no  corporation  engaged 
in  commerce  shall  acquire,  directly  or  indirectly,  the  whole  or  any 
part  of  the  stock  or  other  share  capital  of  another  corporation 
engaged  also  in  commerce,  where  the  effect  of  such  acquisition 
may  be  to  substantially  lessen  com]:)etition  between  the  corpora- 
tion whose  stock  is  so  acquired  and  the  corporation  making  the 
accjuisition,  or  to  restrain  such  commerce  in  any  section  or  com- 
munity, or  tend  to  create  a  monopoly  of  any  line  of  commerce. 

No  corporation  shall  acquire,  directly  or  indirectly,  the  whole 
or  any  part  of  the  stock  or  other  share  capital  of  two  or  more 
corporations  engaged  in  commerce  where  the  effect  of  such  ac- 
quisition, or  the  use  of  such  stock  by  the  voting  or  granting  of 
proxies  or  otherwise,  may  be  to  substantially  lessen  competition 
between  such  corporations,  or  any  of  them,  whose  stock  or  other 
share  capital  is  so  acquired,  or  to  restrain  such  commerce  in  any 
section  or  community,  or  tend  to  create  a  monopoly  of  any  line 
of  commerce. 


708  Trust   and   Othkr   Comhixations  [§  502, 

This  section  shall  not  apply  to  corporations  purchasing  such 
stock  solely  for  investment  and  not  using  the  same  by  voting  or 
otherwise  to  bring  about,  or  in  attempting  to  bring  about,  the 
substantial  lessening  of  competition.  Nor  shall  anything  con- 
tained in  this  section  prevent  a  corporation  engaged  in  commerce 
from  causing  the  formation  of  subsidiary  corporations  for  the 
actual  carrying  on  of  their  immediate  lawful  business,  or  the 
natural  and  legitimate  branches  or  extensions  thereof,  or  from 
owning  and  holding  all  or  a  part  of  the  stock  of  such  subsidiary 
corporations,  when  the  effect  of  such  formation  is  not  to  sub- 
stantially lessen  competition. 

Nor  shall  anything  herein  contained  be  construed  to  prohibit 
any  common  carrier  subject  to  the  laws  to  regulate  commerce 
from  aiding  in  the  construction  of  branches  or  short  lines  so  lo- 
cated as  to  become  feeders  to  the  main  line  of  the  company  so 
aiding  in  suth  construction  or  from  acquiring  or  owning  all  or 
any  part  of  the  stock  of  such  branch  lines,  nor  to  prevent  any 
such  common  carrier  from  acquiring  and  owning  all  or  any  part 
of  the  stock  of  a  branch  or  short  line  constructed  by  an  independ- 
ent company  where  there  is  no  substantial  competition  between 
the  company  owning  the  branch  line  so  constructed  and  the  com- 
pany owning  the  main  line  acquiring  the  property  or  an  interest 
therein,  nor  to  prevent  such  common  carrier  from  extending  any 
of  its  lines  through  the  medium  of  the  acquisition  of  stock  or 
otherwise  of  any  other  such  common  carrier  where  there  is  no 
substantial  competition  betw^een  the  company  extending  its  lines 
and  the  company  whose  stock,  property,  or  an  interest  therein  is 
so  acquired. 

Nothing  contained  in  this  section  shall  be  held  to  aft'ect  or  im- 
pair any  right  heretofore  legally  acquired :  Provided,  That  noth- 
ing in  this  section  shall  be  held  or  construed  to  authorize  or  make 
lawful  anything  heretofore  prohibited  or  made  illegal  by  the 
anti-trust  laws,  nor  to  exempt  any  person  from  the  penal  provi- 
sions thereof  or  the  civil  remedies  therein  provided. 

Sec.  7  Clayton  Act. 

§  502.  Interlocking  Directorates,  When  Prohibited. — 
That  from  and  after  two  years  from  the  date  of  the  approval  of 
this  act  no  person  shall  at  the  siune  time  be  a  director  or  other 
officer  or  employee  of  more  than  one  bank,  banking  association 
or  trust  company,  organized  or  operating  under  the  laws  of  the 


I 


§  502.]  IN  Restraint  ok  Trade.  709 

United  States,  either  of  which  has  deposits,  capital,  surplus,  and 
undivided  profits  aggregating  more  than  $5,000,000;  and  no  pri- 
vate banker  or  person  who  is  a  director  in  any  bank  or  trust 
company,  organized  and  operating  under  the  laws  of  a  state,  hav- 
ing deposits,  capital,  surplus,  and  undivided  profits  aggregating 
more  than  $5,000,000,  shall  be  eligible  to  be  a  director  in  any 
bank  or  banking  association  organized  or  operating  under  the 
laws  of  the  United  States.  The  eligibility  of  a  director,  officer 
or  employee  under  the  foregoing  provisions  shall  be  determined 
by  the  average  amount  of  deposits,  capital,  surplus,  and  undivided 
profits  as  shown  in  the  official  statements  of  such  bank,  banking 
association,  or  trust  company  filed  as  provided  by  law  during  the 
fiscal  year  next  preceding  the  date  set  for  the  annual  election  of 
directors,  and  when  a  director,  officer,  or  employee  has  been 
elected  or  selected  in  accordance  with  the  provisions  of  this  act 
it  shall  be  lawful  for  him  to  continue  as  such  for  one  year  there- 
after under  said  election  or  employment. 

No  bank,  banking  association  or  trust  company,  organized  or 
operating  under  the  laws  of  the  United  States,  in  any  city  or 
incorporated  town  or  village  of  more  than  two  hundred  thousand 
inhabitants,  as  shown  by  the  last  preceding  decennial  census  of 
the  United  States,  shall  have  as  a  director  or  other  officer  or  em- 
ployee any  private  banker  or  any  director  or  other  officer  or  em- 
ployee of  any  other  bank,  banking  association  or  trust  company 
located  in  the  same  place  :  Provided,  That  nothing  in  this  section 
shall  apply  to  mutual  savings  banks  not  having  a  capital  stock 
represented  by  shares:  Provided  further.  That  a  director  or 
other  officer  or  employee  of  such  bank,  banking  association,  or 
trust  company  may  be  a  director  or  other  officer  or  employee  of 
not  more  than  one  other  bank  or  trust  company  organized  under 
the  laws  of  the  United  States  or  any  state  where  the  entire  capital 
stock  of  one  is  owned  by  stockholders  in  the  other:  And  pro- 
mded  further.  That  nothing  contained  in  this  section  shall  forbid 
a  director  of  class  A  of  a  federal  reserve  bank,  as  defined  in  the 
Federal  Reserve  Act  from  being  an  officer  or  director  or  both 
an  officer  and  director  in  one  member  bank. 

That  from  and  after  two  years  from  tlie  date  of  the  approval 
of  this  act  no  person  at  the  same  time  shall  be  a  director  in  any 
two  or  more  corj^orations,  any  one  of  which  has  capital,  surplus, 
and  undivided  ])rofits  aggregating  more  than  $1,000,000,  engaged 


710  Trust   and   Other    Combinations  [§  503. 

in  whole  or  in  part  in  commerce,  other  than  banks,  banking  as- 
sociations, trust  companies  and  common  carriers  subject  to  the 
act  to  regulate  commerce,  approved  February  fourth,  eighteen 
hundred  and  eighty-seven,  if  such  corporations  are  or  shall  have 
been  theretofore,  by  virtue  of  their  business  and  location  or  op- 
eration, competitors,  so  that  the  elimination  of  competition  by 
agreement  between  them  would  constitute  a  violation  of  any  of 
the  provisions  of  any  of  the  anti-trust  laws.  The  eligibility  of  a 
director  under  the  foregoing  provision  shall  be  detennined  by  the 
aggregate  amount  of  the  capital,  surplus,  and  undivided  profits, 
exclusive  of  dividends  declared  but  not  paid  to  stockholders,  at 
the  end  of  the  fiscal  year  of  said  corporation  next  preceding  the 
election  of  directors,  and  when  a  director  has  been  elected  in  ac- 
cordance with  the  provisions  of  this  act  it  shall  be  lawful  for 
him  to  continue  as  such  for  one  year  thereafter. 

When  any  person  elected  or  chosen  as  a  director  or  officer  or 
selected  as  an  employee  of  any  bank  or  other  corporation  subject 
to  the  provisions  of  this  act  is  eligible  at  the  time  of  his  election 
or  selection  to  act  for  such  bank  or  other  corporation  in  such  ca- 
pacity his  eligibility  to  act  in  such  capacity  shall  not  be  affected, 
and  he  shall  not  become  or  be  deemed  amenable  to  any  of  the 
provisions  hereof  by  reason  of  any  change  in  the  affairs  of  such 
bank  or  other  corporation  from  whatsoever  cause,  whether  specifi- 
cally excepted  by  any  of  the  provisions  hereof  or  not,  until  the 
expiration  of  one  year  from  the  date  of  his  election  or  employ- 
ment. 

Sec.  8  Clayton  Act. 

§  503.  Punishment  of  Corporate  Officers. — Every  presi- 
dent, director,  officer  or  manager  of  any  firm,  association  or  cor- 
poration engaged  in  commerce  as  a  common  carrier,  who  embez- 
zles, steals,  abstracts  or  wilfully  misapplies,  or  wilfully  permits 
to  be  misapplied,  any  of  the  moneys,  funds,  credits,  securities, 
property  or  assets  of  such  firm,  association  or  corporation,  aris- 
ing or  accruing  from,  or  used  in,  such  commerce,  in  whole  or  in 
part,  or  wilfully  or  knowingly  converts  the  same  to  his  own  use 
or  to  the  use  of  another,  shall  be  deemed  guilty  of  a  felony  and 
upon  conviction  shall  be  fined  not  less  than  $500  or  confined  in 
the  penitentiary  not  less  than  one  year  nor  more  than  ten  years, 
or  both,  in  the  discretion  of  the  court. 

Prosecutions  hereunder  may  be  in   the   district  court  of   the 


§  504. J  IN  Restraint  of  Trade.  711 

United  States  for  the  district  wherein  the  offense  may  have  been 
committed. 

That  nothing  in  this  section  shall  be  held  to  take  away  or  im- 
pair the  jurisdiction  of  the  courts  of  the  several  states  under  the 
laws  thereof ;  and  a  judgment  of  conviction  or  acquittal  on  the 
merits  under  the  laws  of  any  state  shall  be  a  bar  to  any  prosecu- 
tion hereunder  for  the  same  act  or  acts. 

Section  9  Clayton  Act. 

§  504.  Certain  Contracts  of  Common  Carriers  Must  Be 
Let  by  Competitive  Bids. — That  after  two  years  from  the  ap- 
proval of  this  act  no  common  carrier  engaged  in  commerce  shall 
have  any  dealings  in  securities,  supplies  or  other  articles  of 
commerce,  or  shall  make  or  have  any  contracts  for  construction 
or  maintenance  of  any  kind,  to  the  amount  of  more  than  $50,000, 
in  the  aggregate,  in  any  one  year,  with  another  corporation,  firm, 
partnership  or  association  when  the  said  common  carrier  shall 
have  upon  its  board  of  directors  or  as  its  president,  manager  or 
as  its  purchasing  or  selling  officer,  or  agent  in  the  particular 
transaction,  any  person  who  is  at  the  same  time  a  director,  man- 
ager, or  purchasing  or  selling  officer  of,  or  who  has  any  sub- 
stantial interest  in,  such  other  corporation,  firm,  partnership  or 
association,  unless  and  except  such  purchases  shall  be  made  from, 
or  such  dealings  shall  be  with,  the  bidder  whose  bid  is  the  most 
favorable  to  such  common  carrier,  to  be  ascertained  by  competi- 
tive bidding  under  regulations  to  be  prescribed  by  rule  or  other- 
wise by  the  Interstate  Commerce  Commission.  No  bid  shall  be 
received  unless  the  name  and  address  of  the  bidder  or  the  names 
and  addresses  of  the  officers,  directors  and  general  managers 
thereof,  if  the  bidder  be  a  corporation,  or  of  the  members,  if 
it  be  a  partnership  or  firm,  be  given  with  the  bid. 

Any  person  who  shall,  directly  or  indirectly,  do  or  attempt  to 
do  anything  to  prevent  any  one  from  bidding  or  shall  do 
any  act  to  prevent  free  and  fair  competition  among  the  bidders 
or  those  desiring  to  bid  shall  be  jnmished  as  prescribed  in  this 
section  in  the  case  of  an  officer  or  director. 

Every  such  common  carrier  having  any  such  transactions  or 
making  any  such  purchases  shall  within  thirty  days  after  making 
the  same  file  with  the  Interstate  Commerce  Commission  a  full 
and  detailed  statement  of  the  transaction  showing  the  manner  of 
the  competitive  ])idding,  who  were  the  bidders,  and  the  names 
and  addresses  of  the  directors  and  officers  of  the  corporations 


712  Trust  anx>   Other   Combinations  [§  505. 

nnd  the  members  of  the  firm  or  partnership  bidding;  and  when- 
over  the  said  Commission  shall,  after  investigation  or  hearing, 
liave  reason  to  believe  that  the  law  has  been  violated  in  and  about 
the  said  purchases  or  transactions  it  shall  transmit  all  papers  and 
documents  and  its  own  views  or  findings  regarding  the  transac- 
tion to  the  Attorney-General. 

If  any  common  carrier  shall  violate  this  section  it  shall  be 
fined  not  exceeding  $25,000 ;  and  every  such  director,  agent, 
manager  or  officer  thereof  who  shall  have  knowingly  voted  for 
or  directed  the  act  constituting  such  violation  or  who  shall  have 
aided  or  abetted  in  such  violation  shall  be  deemed  guilty  of  a 
misdemeanor  and  shall  be  fined  not  exceeding  $5,000,  or  con- 
fined in  jail  not  exceeding  one  year,  or  both,  in  the  discretion  of 
the  court. 

Section  10  Clayton  Act. 

§  505.  Authority  to  Enforce  Certain  Provisions  of  Act 
Vested  in  Interstate  Commerce  Commission,  Federal  Re- 
serve Board  and  Federal  Trade  Commission. — That  au- 
thority to  enforce  compliance  with  sections  two,  three,  seven 
and  eight  of  this  act  by  the  persons  respectively  subject  thereto 
is  hereby  vested ;  in  the  Interstate  Commerce  Commission  where 
applicable  to  common  carriers,  in  the  Federal  Reserve  Board 
where  applicable  to  banks,  banking  associations  and  trust  com- 
panies, and  in  the  Federal  Trade  Commission  where  applicable 
to  all  other  character  of  commerce,  to  be  exercised  as  followis: 

Par.  1,  Sec.  11  Clayton  Act. 

§  506.  Procedure  for  Hearings  by  Boards  Vested  with 
Jurisdiction  under  Act. — \\'henever  the  Commission  or  board 
vested  with  jurisdiction  thereof  shall  have  reason  to  believe  that 
any  person  is  violating  or  has  violated  any  of  the  provisions  of 
sections  two.  three,  seven  and  eight  of  this  act,  it  shall  issue  and 
serve  upon  such  person  a  complaint  stating  its  charges  in  that 
respect,  and  containing  a  notice  of  a  hearing  upon  a  day  and  at 
a  place  therein  fixed  at  least  thirty  days  after  the  service  of  said 
complaint.  The  person  so  complained  of  shall  have  the  right  to 
appear  at  the  place  and  tim.e  so  fixed  and  show  cause  why  an  or- 
der should  not  be  entered  by  the  Commission  or  board  requiring 
such  person  to  cease  and  desist  from  the  violation  of  the  law 
so  charged  in  said  complaint.  Any  person  may  make  applica- 
tion, and  upon  good  cause  shown  may  be  allowed  by  the  Com- 
mission or  board,  to  intervene  and  appear  in  said  proceeding  by 


§  507.]  IN  Restraint  of  Trade.  713 

counsel  or  in  person.  The  testimony  in  any  such  proceeding 
shall  be  reduced  to  writing  and  filed  in  the  office  of  the  Com- 
mission or  board.  If  upon  such  hearing  the  Commission  or 
board,  as  the  case  may  be,  shall  be  of  the  opinion  that  any  of  the 
provisions  of  said  sections  have  been  or  are  being  violated,  it 
shall  make  a  report  in  writing  in  which  it  shall  state  its  findings 
as  to  the  facts,  and  shall  issue  and  cause  to  be  served  on  such 
person  an  order  requiring  such  person  to  cease  and  desist  from 
such  violations,  and  divest  itself  of  the  stock  held  or  rid  itself 
of  the  directors  chosen  contrary  to  the  provisions  of  sections 
seven  and  eight  of  this  act,  if  any  there  be,  in  the  manner  and 
within  the  time  fixed  by  said  order.  Until  a  transcript  of  the 
record  in  such  hearing  shall  have  been  filed  in  a  circuit  court  of 
appeals  of  the  United  States,  as  hereinafter  provided,  the  Com- 
mission or  board  may  at  any  time,  upon  such  notice  and  in  such 
manner  as  it  shall  deem  proper,  modify  or  set  aside,  in  whole  or 
in  part,  any  report  or  any  order  made  or  issued  by  it  under 
this  section. 

Par.  2,  Sec.  11  Clayton  Act. 

§  507.  Effect  of  the  Orders  of  Boards. — If  such  person 
fails  or  neglects  to  obey  such  order  of  the  Commission  or  board 
while  the  same  is  in  efifect,  the  Commission  or  board  may  apply, 
to  the  circuit  court  of  appeals  of  the  United  States,  within  any 
circuit  where  the  violation  complained  of  was  or  is  being  com- 
mitted or  where  such  person  resides  or  carries  on  business,  for 
the  enforcement  of  its  order,  and  shall  certify  and  file  with  its 
application  a  transcript  of  the  entire  record  in  the  proceeding,  in- 
cluding all  the  testimony  taken  and  the  report  and  order  of  the 
Commission  or  board.  Upon  such  filing  of  the  application  and 
transcript  the  court  shall  cause  notice  thereof  to  be  served  upon 
such  person  and  thereupon  shall  have  jurisdiction  of  the  pro- 
ceeding and  of  the  question  determined  therein  and  shall  have 
power  to  make  and  enter  upon  the  pleadings,  testimony,  and  pro- 
ceedings set  forth  in  such  transcript  a  decree  affirming,  modify- 
ing, or  setting  aside  the  order  of  the  Commission  or  board.  The 
findings  of  the  Commission  or  board  as  to  the  facts,  if  supported 
by  testimony,  shall  be  conclusive.  If  either  party  shall  apply  to 
the  court  for  leave  to  adduce  additional  evidence,  and  shall 
show  to  the  satisfaction  of  the  court  that  such  additional  evi- 
dence is  material  and  that  there  were  reasonable  grounds  for  the 
failure  to  adduce   such   evidence   in   the   proceeding  before  the 


714  Trust   and  Other   Combinations  [§  508. 

Commission  or  board,  the  court  may  order  such  additional  evi- 
dence to  be  taken  before  the  Commission  or  board  and  to  be  ad- 
duced upon  the  hearing  in  such  manner  and  upon  such  terms 
and  conditions  as  to  the  court  may  seem  proper.  The  Com- 
mission or  board  may  modify  its  findings  as  to  the  facts,  or 
make  new  findings,  by  reason  of  the  additional  evidence  so  taken, 
and  it  shall  file  such  modified  or  new  findings,  which,  if  sup- 
ported by  testimony,  shall  be  conclusive,  and  its  recommenda- 
tions, if  any,  for  the  modification  or  setting  aside  of  its  original 
order,  with  the  return  of  such  additional  evidence.  The  judg- 
ment and  decree  of  the  court  shall  be  final,  except  that  the  same 
shall  be  subject  to  review  by  the  Supreme  Court  upon  certiorari 
as  provided  in  section  two  hundred  and  forty  of  the  Judicial 
Code. 

Any  party  required  by  such  order  of  the  Commission  or  board 
to  cease  and  desist  from  a  violation  charged  may  obtain  a  re- 
view of  such  order  in  said  circuit  court  of  appeals  by  filing  in  the 
court  a  written  petition  praying  that  the  order  of  the  Commis- 
sion or  board  be  set  aside.  A  copy  of  such  petition  shall  be  forth- 
with served  upon  the  Commission  or  board,  and  thereupon  the 
Commission  or  board  forthwith  shall  certify  and  file  in  the  court 
a  transcript  of  the  record  as  hereinbefore  provided.  Upon  the 
filing  of  the  transcript  the  court  shall  have  the  same  jurisdiction 
to  affirm,  set  aside,  or  modify  the  order  of  the  Commission  or 
board  as  in  the  case  of  an  application  by  the  Commission  or 
board  for  the  enforcement  of  its  order,  and  the  findings  of  the 
Commission  or  board  as  to  the  facts,  if  supported  by  testimony, 
shall  in  like  manner  be  conclusive. 

Paragraphs  3  and  4  Section  11  Clayton  Act. 

§  508.  Judicial  Proceedings  to  Enforce  the  Orders  of 
the  Boards. — The  jurisdiction  of  the  circuit  court  of  appeals  of 
the  United  States  to  enforce,  set  aside,  or  modify  orders  of  the 
Commission  or  board  shall  be  exclusive. 

Such  proceedings  in  the  circuit  court  of  appeals  shall  be  given 
precedence  over  other  cases  pending  therein,  and  shall  be  in  every 
way  expedited.  No  order  of  the  Commission  or  board  or  the 
judgment  of  the  court  to  enforce  the  same  shall  in  any  wise  re- 
lieve or  absolve  any  person  from  any  liability  under  the  Anti- 
Trust  Acts. 

Complaints,  orders,  and  other  processes  of  the  Commission  or 
board  under  this  section  may  be  served  by  anyone  duly  author- 


§  509.]  IN  Restraint  of  Trade.  715 

ized  by  the  Commission  or  board,  either  (a)  by  deHvering  a 
copy  thereof  to  the  person  to  be  served,  or  to  a  member  of  the 
partnership  to  be  served,  or  to  the  president,  secretary,  or  other 
executive  officer  or  a  director  of  the  corporation  to  be  served ; 
or  (b)  by  leaving  a  copy  thereof  at  the  principal  office  or  place  of 
business  of  such  person;  or  (c)  by  registering  and  mailing  a 
copy  thereof  addressed  to  such  person  at  his  principal  office  or 
place  of  business.  The  verified  return  by  the  person  so  serving 
said  complaint,  order,  or  other  process  setting  forth  the  manner 
of  said  service  shall  be  proof  of  the  same,  and  the  return  post- 
office  receipt  for  said  complaint,  order,  or  other  process  regis- 
tered and  mailed  as  aforesaid  shall  be  proof  of  the  service  of 
same. 

Paragraphs  5  to  7  Sec.  11  Clayton  Act. 

§  509.  Venue  of  Suits. — That  any  suit,  action,  or  proceeding 
under  the  anti-trust  laws  against  a  corporation  may  be  brought 
not  only  in  the  judicial  district  v^hereof  it  is  an  inhabitant,  but 
also  in  any  district  v^^herein  it  may  be  found  or  transacts  business ; 
and  all  processes  in  such  cases  may  be  served  in  the  district  of 
which  it  is  an  inhabitant,  or  wherever  it  may  be  found. 

Section  12  Clayton  Act. 

§  510.  Attendance  of  Witnesses. — That  in  any  suit,  action, 
or  proceeding  brought  by  or  on  behalf  of  the  United  States  sub- 
poenas for  witnesses  who  are  required  to  attend  a  court  of  the 
United  States  in  any  judicial  district  in  any  case,  civil  or  crim- 
inal, arising  under  the  anti-trust  laws  may  run  into  any  other  dis- 
trict :  Provided,  That  in  civil  cases  no  writ  of  subpcenas  shall  issue 
for  witnesses  living  out  of  the  district  in  which  the  court  is 
held  at  a  greater  distance  than  one  hundred  miles  from  the  place 
of  holding  the  same  without  permission  of  the  trial  court  being 
first  had  upon  proper  application  and  cause  shown. 

Sec.  13  Clayton  Act. 

§  511.  Guilt  of  Corporation  Deemed  Guilt  of  Oflacers. — 
That  whenever  a  corporation  shall  violate  any  of  the  penal  pro- 
visions of  the  anti-trust  laws,  such  violation  shall  be  deemed  to 
be  also  that  of  the  individual  directors,  officers  or  agents  of  such 
corporation  who  shall  have  authorized,  ordered,  or  done  any  of 
the  acts  constituting  in  whole  or  in  part  such  violation,  and  such 
violation  shall  be  deemed  a  misdemeanor,  and  upon  conviction 
thereof  of  any  such  director,  officer,  or  agent  he  shall  be  pun- 


716  Trust   and   Othe:r    Combinations  [§  512. 

ished  by  a  fine  of  not  exceeding  $5,CXX)  or  by  imprisonment  for 
not  exceeding  one  year,  by  both,  in  the  discretion  of  the  court. 

Sec.  14  Clayton  Act. 

§  512.  District  Courts  Invested  with  Jurisdiction  to 
Prevent  Violations  of  the  Act. — That  the  several  district 
courts  of  the  United  States  are  hereby  invested  with  jurisdiction 
to  prevent  and  restrain  violations  of  this  act,  and  it  shall  be  the 
duty  of  the  several  district  attorneys  of  the  United  States,  in 
their  respective  districts,  under  the  direction  of  the  Attorney-Gen- 
eral, to  institute  proceedings  in  equity  to  prevent  and  restrain 
such  violations.  Such  proceedings  may  be  by  way  of  petition 
setting  forth  the  case  and  praying  that  such  violation  shall  be 
enjoined  or  otherwise  prohibited.  When  the  parties  complained 
of  shall  have  been  duly  notified  of  such  petition,  the  court  shall 
proceed,  as  soon  as  may  be,  to  the  hearing  and  determination  of 
the  case ;  and  pending  such  petition,  and  before  final  decree,  the 
court  may  at  any  time  make  such  temporary  restraining  order 
or  prohibition  as  shall  be  deemed  just  in  the  premises.  When- 
ever it  shall  appear  to  the  court  before  which  any  such  proceed- 
ing may  be  pending  that  the  ends  of  justice  require  that  other 
parties  should  be  brought  before  the  court,  the  court  may  cause 
them  to  be  summoned  whether  they  reside  in  the  district  in  which 
the  court  is  held  or  not,  and  subpoenas  to  that  end  may  be  served 
in  any  district  by  the  marshal  thereof. 

Sec.  15  Clayton  Act. 

§  513.  Private  Persons  May  Obtain  Injunctive  Relief, 
When. — ^That  any  person,  firm,  corporation,  or  association  shall 
be  entitled  to  sue  for  and  have  injunctive  relief,  in  any  court 
of  the  United  States  having  jurisdiction  over  the  parties,  against 
threatened  loss  or  damage  by  a  violation  of  the  anti-trust  laws, 
including  sections  two,  three,  seven  and  eight  of  this  act,  when 
and  under  the  same  conditions  and  principles  as  injunctive  relief 
against  threatened  conduct  that  will  cause  loss  or  damage  is 
granted  by  courts  of  equity,  under  the  rules  governing  such  pro- 
ceedings, and  upon  the  execution  of  proper  bond  against  dam- 
ages for  an  injunction  improvidently  granted  and  a  showing  that 
the  danger  of  irreparable  loss  or  damage  is  immediate,  a  prelim- 
inary injunction  may  issue :  Provided,  That  nothing  herein  con- 
tained shall  be  construed  to  entitle  any  person,  firm,  corporation, 
or  association,  except  the  United  States,  to  bring  suit  in  equity 
for  injunctive  relief  against  any  common  carrier  subject  to  the 


§  514.]  IN  Restraint  op  Trade.  717 

provisions  of  the  act  to  regulate  commerce,  approved  February- 
fourth,  eighteen  hundred  and  eighty-seven,  in  respect  of  any 
matter  subject  to  the  regulation,  supervision,  or  other  jurisdiction 
of  the  Interstate  Commerce  Commission. 

Sec.  16  Clayton  Act. 

§  514.  Procedure  in  the  Issuance  of  Temporary  Re- 
straining Orders. — That  no  preliminary  injunction  shall  be  is- 
sued without  notice  to  the  opposite  party. 

No  temporary  restraining  order  shall  be  granted  without  no- 
tice to  the  opposite  party  unless  it  shall  clearly  appear  from  spe- 
cific facts  shown  by  affidavit  or  by  the  verified  bill  that  immediate 
and  irreparable  injury,  loss,  or  damage  will  result  to  the  appli- 
cant before  notice  can  be  served  and  a  hearing  had  thereon. 
Every  such  temporary  restraining  order  shall  be  indorsed  with 
the  date  and  hour  of  issuance,  shall  be  forthwith  filed  in  the 
clerk's  office  and  entered  of  record,  shall  define  the  injury  and 
state  why  it  is  irreparable  and  why  the  order  was  granted  with- 
out notice,  and  shall  by  its  terms  expire  within  such  time  after 
entry,  not  to  exceed  ten  days,  as  the  court  or  judge  may  fix, 
unless  within  the  time  so  fixed  the  order  is  extended  for  a  like 
period  for  good  cause  shown,  and  the  reasons  for  such  extension 
shall  be  entered  of  record.  In  case  a  temporary  restraining  order 
shall  be  granted  without  notice  in  the  contingency  specified,  the 
matter  of  the  issuance  of  a  preliminary  injunction  shall  be  set 
down  for  a  hearing  at  the  earliest  possible  time  and  shall  take 
precedence  of  all  matters  except  older  matters  of  the  same  char- 
acter ;  and  when  the  same  comes  up  for  hearing  the  party  ob- 
taining the  temporary  restraining  order  shall  proceed  with  the 
application  for  a  preliminary  injunction,  and  if  he  does  not  do 
so  the  court  shall  dissolve  the  temporary  restraining  order.  Upon 
two  days'  notice  to  the  party  obtaining  such  temporary  restrain- 
ing order  the  opposite  party  may  appear  and  move  the  dissolu- 
tion or  modification  of  the  order,  and  in  that  event  the  court  or 
judge  shall  proceed  to  hear  and  determine  the  motion  as  expedi- 
tiously as  the  ends  of  justice  may  require. 

Section  two  hundred  and  sixty-three  of  an  act  entitled  "An 
act  to  codify,  revise,  and  amend  the  laws  relating  to  the  judi- 
ciary," approved  March  third,  nineteen  hundred  and  eleven,  is 
hereby  repealed. 

Nothing  in  this  section  contained  shall  be  deemed  to  alter,  re- 
peal, or  amend  section  two  hundred  and  sixty-six  of  an  act  en- 


718  •      Trust   and   Othkr   Combinations  [§  515. 

titled  "An  act  to  codify,  revise,  and  amend  the  laws  relating  to 
the  jiuhciary,"  approved  March  third,  nineteen  hundred  and 
eleven. 

Sec.  17  Clayton  Act. 

§  515.  Security  before  Issuing"  "Restraining  Orders  When 
Required. — That,  except  as  otherwise  provided  in  section  16  of 
this  act,  no  restraining  order  or  interlocutory  order  of  injunc- 
tion shall  issue,  except  upon  the  giving  of  security  hy  the  appli- 
cant in  such  sum  as  the  court  or  judge  may  deem  proper,  condi- 
tioned upon  the  payment  of  such  costs  and  damages  as  may  be 
incurred  or  suffered  by  any  party  who  may  be  found  to  have 
been  wrongfully  enjoined  or  restrained  thereby. 

Sec.  18  Clayton  Act. 

§  516.  What  Injunction  Orders  Shall  Contain. — That  every 
order  of  injunction  or  restraining  order  shall  set  forth  the  rea- 
sons for  the.  issuance  of  the  same,  shall  be  specific  in  terms,  and 
shall  describe  in  reasonable  detail,  and  not  by  reference  to  the 
bill  of  complaint  or  other  document,  the  act  or  acts  sought  to  be 
restrained,  and  shall  be  binding  only  upon  the  parties  to  the  suit, 
their  officers,  agents,  servants,  employees  and  attorneys,  or  those 
in  active  concert  or  participating  with  them,  and  who  shall,  by 
personal  service  or  otherwise,  have  received  actual  notice  of  the 
same. 

Sec.  19  Clayton  Act. 

§  517.  Injunctions  in  Suits  between  Employer  and  Em- 
ployee.— That  no  restraining  order  or  injunction  shall  be  granted 
by  any  court  of  the  United  States,  or  a  judge  or  the  judges 
thereof,  in  any  case  between  an  employer  and  employees,  or  be- 
tween employers  and  employees,  or  between  employees,  or  be- 
tween persons  employed  and  persons  seeking  employment,  in- 
volving, or  growing  out  of,  a  dispute  concerning  terms  or 
conditions  of  employment,  unless  necessary  to  prevent  irreparable 
injury  to  property,  or  to  a  property  right  of  the  party  making  the 
application,  for  which  injury  there  is  no  adequate  remedy  at  law, 
and  such  property  or  property  right  must  be  described  with  par- 
ticularity in  the  application,  which  must  be  in  writing  and  sworn 
to  by  the  applicant  or  by  his  agent  or  attorney. 

And  no  such  restraining  order  or  injunction  shall  prohibit 
any  person  or  persons,  whether  singly  or  in  concert,  from  termi- 
nating any  relation  of  employment,  or  from  ceasing  to  perform 
any  work  or  labor,  or  from  recommending,  advising,  or  persuad- 


§  518.]  IX  Restraixt  of  Trade.  719 

ing  others  by  peaceful  means  so  to  do;  or  from  attending  at  any 
place  where  any  such  person  or  persons  may  lawfully  be,  for 
the  purpose  of  peacefully  obtaining  or  communicating  informa- 
tion, or  from  peacefully  persuading  any  person  to  work  or  to  ab- 
stain from  working ;  or  from  ceasing  to  patronize  or  to  employ 
any  party  to  such  dispute,  or  from  recommending,  advising,  or 
persuading  others  by  peaceful  and  lawful  means  so  to  do;  or 
from  paying  or  giving  to,  or  withholding  from,  any  person  en- 
gaged in  such  dispute,  any  strike  benefits  or  other  moneys  or 
things  of  value;  or  from  peaceably  assembling  in  a  lawful  man- 
ner, and  for  lawful  purposes ;  or  from  doing  any  act  or  thing 
which  might  lawfully  be  done  in  the  absence  of  such  dispute  by 
any  party  thereto;  nor  shall  any  of  the  acts  specified  in  this  par- 
j'graph  be  considered  or  held  to  be  violations  of  any  law  of  the 
United  States. 

Sec.  20  Clayton  Act. 

It  will 'be  noted  that  this  section  is  by  its  terms  limited  to 
cases  between  ''employer  and  employees"  or  persons  seeking 
employment,  and  then  only  when  the  case  does  not  involve  ir- 
reparable injur}^  to  property  or  to  a  property  right.  Par.  2 
of  the  Section  permits  the  doing  of  certain  acts  which  some 
courts  have  held  to  be  illegal.     Sec.  486  supra. 

§  518.  Disobedience  of  Orders  of  Court. — That  any  per- 
son who  shall  willfully  disobey  any  lawful  writ,  process,  order, 
rule,  decree,  or  command  of  any  district  court  of  the  United 
States  or  any  court  of  the  District  of  Columbia  by  doing  any  act 
or  thing  therein,  or  thereby  forbidden  to  be  done  by  him,  if  the 
act  or  thing  so  done  by  him  be  of  such  character  as  to  constitute 
also  a  criminal  ofifense  under  any  statute  of  the  United  States,  or 
under  the  laws  of  any  state  in  which  the  act  was  committed,  shall 
be  proceeded  against  for  his  said  contempt  as  hereinafter  pro- 
vided. 

Sec.  21  of  Clayton  Act. 

§  519.  Same  Subject,  Procedure  Prescribed. — That  when- 
ever it  shall  be  made  to  appear  to  any  district  court  or  judge 
thereof,  or  to  any  judge  therein  sitting,  by  the  return  of  a  proper 
ofificer  on  lawful  process,  or  upon  the  affidavit  of  some  credible 
person,  or  l>y  information  filed  by  any  district  attorney,  that  there 
is  reasonable  ground  to  believe  that  any  person  has  been  guilty 
of  such  contempt,  the  court  or  judge  thereof,  or  any  judge  therein 


7'20  Trust   and   Utiikk   Combinations  [§  520. 

sitting,  may  issue  a  rule  requiring  the  said  person  so  charged  to 
show  cause  upon  a  day  certain  why  he  should  not  he  punished 
therefor,  which  rule,  together  with  a  copy  of  the  affidavit  or  in- 
formation, shall  be  served  upon  the  person  charged,  with  suffi- 
cient promptness  to  enable  him  to  prepare  for  and  make  return 
to  the  order  at  the  time  fixed  therein.  If  upon  or  by  such  re- 
turn, in  the  judgment  of  the  court,  the  alleged  contempt  be  not 
sufficiently  purged,  a  trial  shall  be  directed  at  a  time  and  place 
fixed  by  the  court:  Provided,  hoz^'ever.  That  if  the  accused,  be- 
ing a  natural  person,  fail  or  refuse  to  make  return  to  the  rule 
to  show  cause,  an  attachment  may  issue  against  his  person  to 
compel  an  answer,  and  in  case  of  his  continued  failure  or  refusal. 
of  if  for  any  reason  it  be  impracticable  to  dispose  of  the  matter  on 
the  return  day,  he  may  be  reciuired  to  give  reasonable  bail  for 
his  attendance  at  the  trial  and  his  submission  to  the  final  judg- 
ment of  the  court.  Where  the  accused  is  a  body  corporate,  an 
attachment  for  the  sequestration  of  its  property  may^be  issued 
upon  like  refusal  or  failure  to  answer. 

Par.  1,  Sec.  22  Clayton  Act. 

§  520.  Right  to  a  Trial  by  Jury  Provided  for. — In  all  cases 
within  the  purview  of  this  act  such  trial  may  be  by  the  court, 
or,  upon  demand  of  the  accused,  by  a  jury ;  in  which  latter  event 
the  court  may  impanel  a  jury  from  the  jurors  then  in  attend- 
ance, or  the  court  or  the  judge  thereof  in  chambers  may  cause  a 
sufficient  number  of  jurors  to  be  selected  and  summoned,  as  pro- 
vided by  law,  to  attend  at  the  time  and  place  of  trial,  at  which 
time  a  jury  shall  be  selected  and  impaneled  as  upon  a  trial  for 
misdemeanor;  and  such  trial  shall  conform,  as  near  as  may  be, 
to  the  practice  in  criminal  cases  prosecuted  by  indictment  or  upon 
information. 

If  the  accused  be  found  guilty,  judgment  shall  be  entered  ac- 
cordingly, prescribing  the  punishment,  either  by  fine  or  impris- 
onment, or  both,  in  the  discretion  of  the  court.  Such  fine  shall 
be  paid  to  the  United  States  or  to  the  complainant  or  other  party 
injured  by  the  act  constituting  the  contempt,  or  may,  where  more 
than  one  is  so  damaged,  be  divided  or  apportioned  among  them 
as  the  court  may  direct,  but  in  no  case  shall  the  fine  to  be  paid 
to  the  United  States  exceed,  in  case  the  accused  is  a  natural  per- 
son, the  sum  of  $1,000,  nor  shall  such  imprisonment  exceed  the 
term  of  six  months :    Provided,  That  in  any  case  the  court  or  a 


§  521.]  IN  Restraint  of  Trade;.  721 

judge  thereof  may,  for  good  cause  shown,  by  affidavit  or  proof 
taken  in  open  court  or  before  such  judge  and  filed  with  the 
papers  in  the  case,  dispense  with  the  rule  to  show  cause,  and  may 
issue  an  attachment  for  the  arrest  of  the  person  charged  with 
contempt;  in  which  event  such  person,  when  arrested,  shall  be 
brought  before  such  court  or  a  judge  thereof  without  unneces- 
sary delay  and  shall  be  admitted  to  bail  in  a  reasonable  penalty 
for  his  appearance  to  answer  to  the  charge  or  for  trial  for  the 
contempt ;  and  thereafter  the  proceedings  shall  be  the  same  as 
provided  herein  in  case  the  rule  had  issued  in  the  first  instance. 

Paragraphs  2  and  3  Sec.  22  Clayton  Act. 

The  use  of  the  word  demand  would  seem  to  give  an  absolute 
right  of  trial  by  jury,  and  the  only  discretion  left  to  the  judge  is 
to  decide  whether  the  jury  shall  be  impaneled  from  "jurors  then 
in  attendance"  or  from  others  "to  be  selected  and  summoned." 

§  521.  Review  of  Convictions  for  Violation  of  Court  Or- 
ders.— That  the  evidence  taken  upon  the  trial  of  any  person  so 
accused  may  be  preserved  by  bill  of  exceptions,  and  any  judg- 
ment of  conviction  may  be  reviewed  upon  writ  of  error  in  all 
respects  as  now  provided  by  law  in  criminal  cases,  and  may  be 
affirmed,  reversed,  or  modified  as  justice  may  require.  Upon 
the  granting  of  such  writ  of  error,  execution  of  judgment  shall 
be  stayed,  and  the  accused,  if  thereby  sentenced  to  imprison- 
ment, shall  be  admitted  to  bail  in  such  reasonable  sum  as  may 
be  required  by  the  court,  or  by  any  justice,  or  any  judge  of  any 
district  court  of  the  Uifited  States  or  any  court  of  the  District 
of  Columbia. 

Section  23  Clayton  Act. 

§  522.  Provision  for  Trial  for  Disobedience  to  Orders  of 
Court  Not  Applicable  to  Contempt  Committed  in  the  Pres- 
ence of  the  Court. — That  nothing  herein  contained  shall  be  con- 
strued to  relate  to  contempts  committed  in  the  presence  of  the 
court,  or  so  near  thereto  as  to  obstruct  the  administration  of  jus- 
tice, nor  to  contempts  committed  in  disobedience  of  any  lawful 
writ,  process,  order,  rule,  decree,  or  command  entered  in  any 
suit  or  action  brought  or  prosecuted  in  the  name  of,  or  on  behalf 
of,  the  United  States,  but  the  same,  and  all  other  cases  of  con- 
tempt not  specifically  embraced  within  section  twenty-one  of  this 
act,  may  he  punished  in  conformity  to  the  usages  at  law  and  in 
equity  now  prevailing. 

Sec.  24  Clayton  Act. 


722  Trust   and   Otiie;r    Combinations  [§  523. 

§  523.  Limitation  in  Proceeding's  for  Contempt. — That 
no  proceeding  for  contempt  shall  be  instituted  against  any  person 
unless  begun  within  one  year  from  the  date  of  the  act  complained 
of ;  nor  shall  any  such  proceeding  be  a  bar  to  any  criminal  prose- 
cution for  the  same  act  or  acts ;  but  no(thing  herein  contained  shall 
afifect  any  proceedings  in  contempt  pending  at  the  time  of  the 
passage  of  this  act. 

Sec.  25  Clayton  Act. 

§  524.  That  Part  of  the  Act  Invalid,  Not  to  Affect  Va- 
lidity of  Other  Portions. — That  if  any  clause,  sentence,  para- 
graph, or  part  of  this  act  shall,  for  any  reason,  be  adjudged  by 
any  court  of  competent  jurisdiction  to  be  invalid,  such  judgment 
shall  not  afifect,  impair,  or  invalidate  the  remainder  thereof, 
but  shall  be  confined  in  its  operation  to  the  clause,  sentence,  par- 
agraph, or  part  thereof  directly  involved  in  the  controversy  in 
which  such  judgment  shall  have  been  rendered. 

Section  26  Clayton  Act. 


APPENDIX  A. 

[PuBuc — No.  203 — 63d  Congress-] 
[h.  r.   15613.] 

AN  ACT  to  create  a  Federal     Trade  Commission,  to  define  its  power 
and   duties,   and   for   other   purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  a 
Commission  is  hereby  created  and  estabHshed,  to  be  known  as 
the  Federal  Trade  Commission  (hereinafter  referred  to  as  the 
Commission),  which  shall  be  composed  of  five  commissioners, 
who  shall  be  appointed  by  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate.  Not  more  than  three  of  the  Com- 
missioners shall  be  members  of  the  same  political  party.  The 
first  commissioners  appointed  shall  continue  in  office  for  terms 
of  three,  four,  five,  six,  and  seven  years,  respectively,  from  the 
date  of  the  taking  eft'ect  of  this  act,  the  terni  of  each  to  be  desig- 
nated by  the  President,  but  their  successors  shall  be  appointed 
for  terms  of  seven  years,  except  that  any  person  chosen  to  fill  a 
vacancy  shall  be  appointed  only  for  the  unexpired  term  of  the 
commissioner  whom  he  shall  succeed.  The  Commission  shall 
choose  a  chairman  from  its  own  membership.  No  commissioner 
shall  engage  in  any  other  business,  vocation,  or  employment. 
Any  commissioner  may  be  removed  by  the  President  for  ineffi- 
ciency, neglect  of  duty,  or  malfeasance  in  office.  A  vacancy  in 
the  Commission  shall  not  impair  the  right  of  the  remaining  com- 
missioners to  exercise  all  the  powers  of  the  Commission. 

The  Commission  shall  have  an  official  seal,  which  shall  be  ju- 
dicially noticed. 

Sec.  2.  That  each  commissioner  shall  receive  a  salary  of 
$10,000  a  year,  payable  in  the  same  manner  as  the  salaries  of 
the  judges  of  the  courts  of  the  United  States.  The  Commission 
shall  appoint  a  secretary,  who  shall  receive  a  salary  of  $5,000  a 
year,  payable  in  like  manner,  and  it  shall  have  authority  to  em- 
ploy and  fix  the  compensation  of  such  attorneys,  special  experts, 
examiners,  clerks,  and  other  employees  as  it  may  from  time  to 
time  find  necessary  for  the  proper  performance  of  its  duties  and 
as  may  be  from  time  to  time  ap])ropriated  for  by  Congress. 

723 


724  Federal  Trade  Commission  Act. 

With  tlie  exception  of  the  secretary,  a  clerk  to  each  commis- 
sioner, the  attorneys,  and  such  special  experts  and  examiners  as 
the  Commission  may  from  time  to  time  find  necessary  for  the 
conduct  of  its  work,  all  employees  of  the  Commission  shall  be  a 
part  of  the  classified  civil  service,  and  shall  enter  the  service 
under  such  rules  and  regulations  as  may  be  prescribed  by  the 
Commission  and  by  the  Civil  Service  Commission. 

All  of  the  expenses  of  the  Commission,  including  all  necessary 
expenses  for  transportation  incurred  by  the  commissioners  or  bv 
their  employees  under  their  orders,  in  making  any  investigation, 
or  upon  official  business  in  any  other  places  than  in  the  city  of 
Washington,  shall  be  allowed  and  paid  on  the  presentation  of 
itemized  vouchers  therefor  approved  by  the  Commission. 

Until  otherwise  provided  by  law,  the  Commission  may  rent 
suitable  offices  for  its  use. 

The  Auditor  for  the  state  and  other  Departments  shall  receive 
and  examine  all  accounts  of   expenditures  of  the  Commission. 

Sec.  3.  That  upon  the  organization  of  the  Commission  and 
election  of  its  chairman,  the  Bureau  of  Corporations  and  the  of- 
fices of  Commissioner  and  Deputy  Commissioner  of  Corpora- 
tions shall  cease  to  exist ;  and  all  pending  investigations  and  pro- 
ceedings of  the  Bureau  of  Corporations  shall  be  continued  by  the 
Commission. 

All  clerks  and  employees  of  the  said  bureau  shall  be  transferred 
to  and  become  clerks  and  employees  of  the  Commission  at  their 
present  grades  and  salaries.  All  records,  papers,  and  property 
of  the  said  bureau  shall  become  records,  papers,  and  property  of 
the  Commission,  and  all  unexpended  funds  and  appropriations  for 
the  use  and  maintenance  of  the  said  bureau,  including  any  allot- 
ment already  made  to  it  by  the  Secretary  of  Commerce  from  the 
contingent  appropriation  for  the  Department  of  Commerce  for 
the  fiscal  year  nineteen  hundred  and  fifteen,  or  from  the  de- 
partmental printing  fund  for  the  fiscal  year  nineteen  hundred  and 
fifteen,  shall  become  funds  and  appropriations  available  to  be 
expended  by  the  Commission  in  the  exercise  of  the  powers,  au- 
thority, and  duties  conferred  on  it  by  this  act. 

The  principal  office  of  the  Commission  shall  be  in  the  city  of 
Washington,  but  it  may  meet  and  exercise  all  its  powers  at  any 
other  place.  The  Commission  may,  by  one  or  more  of  its  mem- 
bers, or  by  such  examiners  as  it  may  designate,  prosecute  any 
inquiry  necessary  to  its  duties  in  any  part  of  the  United  States. 


Fedkrai.  Trade  Commission  Act.  725 

Sec.  4.  That  the  words  detined  in  this  section  shall  have  the 
following  meaning  when  found  in  this  act,  to  wat : 

"Commerce"  means  commerce  among  the  several  states  or 
with  foreign  nations,  or  in  any  territory  of  the  United  States  or 
in  the  District  of  Columbia,  or  between  any  such  territory  and 
another,  or  between  any  such  territory  and  any  state  or  foreign 
nation,  or  between  the  District  of  Columbia  and  any  stsPte  or 
territory  or  foreign  nation. 

"Corporation"  means  any  company  or  association  incorporated 
or  vmincorporated,  which  is  organized  to  carry  on  business  for 
profit  and  has  shares  of  capital  or  capital  stock,  and  any  com- 
pany or  association,  incorporated  or  unincorporated,  without 
shares  of  capital  or  capital  stock,  except  partnership,  which  is 
organized  to  carry  on  business  for  its  own  profit  or  that  of  its 
members. 

"Documentary  evidence"  means  all  documents,  papers,  and 
correspondence  in  existence  at  and  after  the  passage  of  this  act. 

"Acts  to  regulate  commerce"  means  the  act  entitled  "An  act  to 
regulate  commerce,"  approved  February  fourteenth,  eighteen 
lumdred  and  eighty-seven,  and  all  acts  amendatory  thereof  and 
supplementary  thereto. 

"Anti-trust  acts"  means  the  act  entitled  "An  act  to  protect 
trade  and  commerce  against  unlawful  restraints  and  monopolies," 
approved  July  second,  eighteen  hundred  and  ninety ;  also  the 
sections  seventy-three  to  seventy-seven,  inclusive,  of  an  act  en- 
titled "An  act  to  reduce  taxation,  to  provide  revenue  for  the 
Government,  and  for  other  purposes,"  approved  August  twenty- 
seventh,  eighteen  hundred  and  ninety-four;  and  also  the  act  en- 
titled "An  act  to  amend  sections  seventy-three  and  seventy-six  of 
the  act  of  August  twenty-seventh,  eighteen  hundred  and  ninety- 
four,  entitled  'An  act  to  reduce  taxation,  to  provide  revenue  for 
the  Government,  and  for  other  purposes,'  "  approved  February 
twelfth,  nineteen  hundred  and  thirteen. 

Sec.  5.  That  unfair  methods  of  competition  in  commerce  are 
hereby  declared  unlawful. 

The  Commission  is  hereby  empowered  and  directed  to  prevent 
persons,  partnerships,  or  corporations,  except  banks,  and  com- 
mon carriers  subject  to  the  acts  to  regulate  commerce,  from  us- 
ing unfair  methods  of  competition  in  commerce. 

Whenever  the  Commission  shall  have  reason  to  believe  that 
any  such  person,  partnership,  or  corporation  has  been  or  is  using 


726  Federal  Trade  Commission  Act. 

any  unfair  method  of  competition  in  commerce,  and  if  it  shall 
appear  to  the  Commission  that  a  proceeding  by  it  in  respect 
thereof  would  be  to  the  interest  of  the  public,  it  shall  issue  and 
serve  upon  such  person,  partnership,  or  corporation  a  complaint 
stating  its  charges  in  that  respect,  and  containing  a  notice  of  a 
hearing  upon  a  day  and  at  a  place  therein  fixed  at  least  thirty 
days. after  the  service  of  said  complaint.  The  person,  partner- 
ship, or  corporation  so  complained  of  shall  have  the  right  to  ap- 
pear at  the  place  and  time  so  fixed  and  show  cause  why  an  order 
should  not  be  entered  by  the  Commission  requiring  such  person, 
partnership,  or  corporation  to  cease  and  desist  from  the  viola- 
tion of  the  law  so  charged  in  said  complaint.  Any  person,  part- 
nership, or  corporation  may  make  application,  and  upon  good 
cause  shown  may  be  allowed  by  the  Commission,  to  intervene 
and  appear  in  said  proceeding  by  counsel  or  in  person.  The  tes- 
timony in  any  such  proceeding  shall  be  reduced  to  writing  and 
filed  in  the  office  of  the  Commission.  If  upon  such  hearing  the 
Commission  shall  be  of  the  opinion  that  the  method  of  competi- 
tion in  question  is  prohibited  by  this  act,  it  shall  make  a  report  in 
Vv'riting  in  which  it  shall  state  its  findings  as  to  the  facts,  and  shall 
issue  and  cause  to  be  served  on  such  person,  partnership,  or  cor- 
poration an  order  requiring  such  person,  partnership,  or  corpora- 
tion to  cease  and  desist  from  using  such  method  of  competition. 
Until  a  transcript  of  the  record  in  such  hearing  shall  have  been 
filed  in  a  circuit  court  of  appeals  of  the  United  States,  as  herein- 
after provided,  the  Commission  may  at  any  time,  upon  such  no- 
tice and  in  such  manner  as  it  shall  deem  proper,  modify  or  set 
aside,  in  whole  or  in  part,  any  report  or  any  order  made  or  issued 
by  it  under  this  section. 

If  such  person,  partnership,  or  corporation  fails  or  neglects 
to  obey  such  order  of  the  Commission  while  the  same  is  in  eflfect, 
the  Commission  may  apply  to  the  circuit  court  of  appeals  of  the 
United  States,  within  any  circuit  where  the  method  of  competi- 
tion in  question  was  used  or  where  such  person,  partnership,  or 
corporation  resides  or  carries  on  business,  for  the  enforcement 
of  its  orders,  and  shall  certify  and  file  with  its  application  a  trans- 
script  of  the  entire  record  in  the  proceeding,  including  all  the 
testimony  taken  and  the  report  and  order  of  the  Commission. 
Upon  such  filing  of  the  application  and  transcript  the  court  shall 
cause  notice  thereof  to  be  served  upon  such  person,  partnership, 
or  corporation  and  thereupon  shall  have  jurisdiction  of  the  pro- 


Federai,  Trade  Commission  Act.  727 

ceeding  and  of  the  question  determined  therein,  and  shall  have 
power  to  make  and  enter  upon  the  pleadings,  testimony,  and  pro- 
ceedings set  forth  in  such  transcript  a  decree  affirming,  modify- 
ing, or  setting  aside  the  order  of  the  Commission.  The  findings 
of  the  Commission  as  to  the  facts,  if  supported  by  testimony, 
shall  be  conclusive.  If  either  party  shall  apply  to  the  court  for 
leave  to  adduce  additional  evidence,  and  shall  show  to  the  satis- 
faction of  the  court  that  such  additional  evidence  is  material  and 
that  there  were  reasonable  grounds  for  the  failure  to  adduce  such 
evidence  in  the  proceeding  before  the  Commission  the  court  may 
order  such  additional  evidence  to  be  taken  before  the  Commis- 
sion and  to  be  adduced  upon  the  hearing  in  such  manner  and 
upon  such  terms  and  conditions  as  to  the  court  may  seem  proper. 
The  Commission  may  modify  its  findings  as  to  the  facts,  or  make 
new  findings,  by  reason  of  the  additional  evidence  so  taken,  and 
it  shall  file  such  modified  or  new  findings,  which,  if  supported 
by  testimony,  shall  be  conclusive,  and  its  recommendation,  if  any, 
for  the  modification  or  setting  aside  of  its  original  order,  with 
the  return  of  such  additional  evidence.  The  judgment  and  de- 
cree of  the  court  shall  be  final,  except  that  the  same  shall  be  sub- 
ject to  review  by  the  Supreme  Court  upon  certiorari  as  provided 
in  section  two  hundred  and  forty  of  the  Judicial  Code. 

Any  party  recjuired  by  such  order  of  the  Commission  to  cease 
and  desist  from  using  such  method  of  competition  may  obtain  a 
review  of  such  order  in  said  circuit  court  of  appeals  by  filing  in 
the  court  a  written  petition  praying  that  the  order  of  the  Com- 
mission be  set  aside.  A  copy  of  such  petition  shall  be  forthwith 
serv^ed "  upon  the  Commission,  and  thereupon  the  Commission 
forthwith  shall  certify  and  file  in  the  court  a  transcript  of  the 
record  as  hereinbefore  provided.  Upon  the  filing  of  the  tran- 
script the  court  shall  have  the  same  jurisdiction  to 
affirm,  set  aside,  or  modify  the  order  of  the  Commission  as 
in  the  case  of  an  application  by  the  Commission  for  the  enforce- 
ment of  its  order,  and  the  findings  of  the  Commission  as  to  the 
facts,  if  supported  by  testimony,  shall  in  like  manner  be  con- 
clusive. 

The  jurisdiction  of  the  circuit  court  of  appeals  of  the  United 
States  to  enforce,  set  aside,  or  modify  orders  of  the  Commission 
shall  be  exclusive. 

Such  proceedings  in  the  circuit  court  of  appeals  shall  be  given 
precedence   over   other   cases   pending  therein,   and   shall   be   in 


728  Federal  Trade  Commission  Act. 

every  way  expedited.  No  order  of  the  Commission  or  judgment 
of  the  court  to  enforce  the  same  shall  in  any  wise  relieve  or  ab- 
solve any  person,  partnership,  or  corporation  from  any  liability 
under  the  Anti-Trust  Acts. 

Complaints,  orders,  and  other  processes  of  the  Commission 
under  this  section  may  be  served  by  anyone  duly  authorized  by 
the  Commission,  either  (a)  by  delivering  a  copy  thereof  to  the 
person  to  be  served,  or  to  a  member  of  the  partnership  to  be 
served,  or  to  the  president,  secretary,  or  other  executive  officer 
or  a  director  of  the  corporation  to  be  served;  or  (b)  by  leaving 
a  copy  thereof  at  the  principal  office  or  place  of  business  of  such 
p-erson,  partnership,  or  corporation;  or  (c)  by  registering  and 
mailing  a  copy  thereof  addressed  to  such  person,  partnership, 
or  corporation  at  his  or  its  principal  office  or  place  of  business. 
The  verified  return  by  the  person  so  serving  said  complaint,  or- 
der, or  other  process  setting  forth  the  manner  of  said  service 
shall  be  proof  of  the  same,  and  the  return  post-office  receipt  for 
said  complaint,  order,  or  other  process  registered  and  mailed  as 
aforesaid  shall  be  proof  of  the  service  of  the  same. 

Sec.  6.    That  the  Commission  shall  also  have  power — 

(a)  To  gather  and  compile  information  concerning,  and  to 
investigate  from  time  to  time  the  organization,  business,  conduct, 
practices,  and  management  of  any  corporation  engaged  in  com- 
merce, excepting  banks  and  common  carriers  subject  to  the  act 
to  regulate  commerce,  and  its  relation  to  other  corporations  and 
to    individuals,    associations,    and    partnerships. 

(b)  To  require,  by  general  or  special  orders,  corporations  en- 
gaged in  commerce,  excepting  banks,  and  common  carriers  sub- 
ject to  the  act  to  regulate  commerce,  or  any  class  of  them,  or 
any  of  them,  respectively,  to  file  with  the  Commission  in  such 
form  as  the  Commission  may  prescribe  annual  or  special,  or 
both  annual  and  special,  reports  or  answers  in  writing  to  spe- 
cific questions,  furnishing  to  the  Commission  such  infonnation  as 
it  may  require  as  to  the  organization,  business,  conduct,  practices, 
management,  and  relation  to  other  corporations,  partnerships, 
and  individuals  of  the  respective  corporations  filing  such  reports 
or  answers  in  writing.  Such  reports  and  answers  shall  be  made 
under  oath,  or  otherwise,  as  the  Commission  may  prescribe,  and 
shall  be  filed  with  the  Commission  within  such  reasonable  period 
as  the  Commission  may  prescribe,  unless  additional  time  be 
granted  in  any  case  by  the  Commission. 


Federai,  Trade:  Commission  Act.  729 

(c)  Whenever  a  final  decree  has  been  entered  against  any 
defendant  corporation  in  any  suit  brought  by  the  United  States 
to  prevent  and  restrain  any  violation  of  the  Anti-Trust  Acts,  to 
make  investigation,  upon  its  own  initiative,  of  the  manner  in  which 
the  decree  has  been  or  is  being  carried  out,  and  upon  the  applica- 
tion of  the  Attorney-General  it  shall  be  its  duty  to  make  such 
investigation.  It  shall  transmit  to  the  Attorney-General  a  re- 
port embodying  its  findings  and  recommendations  as  a  result  of 
any  such  investigation,  and  the  report  shall  be  made  public  in  the 
discretion  of  the  Commission. 

(d)  Upon  the  direction  of  the  President  or  either  House  of 
Congress  to  investigate  and  report  the  facts  relating  to  any  al- 
leged violations  of  the  Anti-Trust  Acts  by  any  corporation. 

(e)  Upon  the  application  of  the  Attorney-General  to  in- 
vestigate and  make  recommendations  for  the  readjustment  of 
the  business  of  any  corporation  alleged  to  be  violating  the  Anti- 
Trust  Acts  in  order  that  the  corporation  may  thereafter  main- 
tain its  organization,  management,  and  conduct  of  busniess  in  ac- 
cordance with  law. 

(f)  To  make  public  from  time  to  time  such  portions  of  the 
information  obtained  by  it  hereunder,  except  trade  secrets  and 
names  of  customers,  as  it  shall  deem  expedient  in  the  public  in- 
terest ;  and  to  make  annual  and  special  reports  to  the  Congress 
and  to  submit  therewith  recommendations  for  additional  legisla- 
Hon  ;  and  to  ])rovide  for  the  publication  of  its  reports  and  deci- 
sions in  such  form  and  manner  as  may  be  best  adapted  for  pub- 
lic information  and  use. 

(g)  From  time  to  time  to  classify  corporations  and  to  make 
rules  and  regulations  for  the  purpose  of  carrying  out  the  pro- 
visions of  this  act. 

(h)  To  investigate,  from  time  to  tin.ie,  trade  conditions  in 
and  with  foreign  countries  where  associations,  combinations,  or 
practices  of  manufacturers,  merchants,  or  traders,  or  other  con-, 
ditions,  may  affect  the  foreign  trade  of  the  United  States,  and 
to  report  to  Congress  thereon,  wnth  such  recommendations  as  it 
deems  advisable. 

Sec.  7.  That  in  any  suit  in  ecjuity  brought  by  or  under  the 
direction  of  the  Attorney-General  as  provided  in  the  Anti-Trust 
Acts,  the  court  may,  upon  the  conclusion  of  the  testimony  there- 
in, if  it  shall  be  then  of  o])inion  that  the  complainant  is  entitled 
to  relief,  refer  said  suit  to  the  Commission,  as  a  master  in  chan- 


730  Fedeual  Trade;  Commission  Act. 

eery,  to  aseertain  and  report  an  appropriate  form  of  decree 
therein.  The  Commission  shall  proceed  upon  such  notice  to  the 
[)arties  and  under  such  rules  of  procedure  as  the  court  may  pre- 
scribe, and  upon  the  coming  in  of  such  report  such  exceptions 
may  be  filed  and  such  proceedings  had  in  relation  thereto  as 
upon  the  report  of  a  master  in  other  equity  causes, 'but  the 
court  may  adopt  or  reject  such  report,  in  whole  or  in  part,  and 
enter  such  decree  as  the  nature  of  the  case  may  in  its  judgment 
require. 

Sec.  8.  That  the  several  departments  and  bureaus  of  the 
Government  when  directed  by  the  President  shall  furnish  the 
Commission,  upon  its  request,  all  the  records,  papers,  and  infor- 
n-.ation  in  their  possession  relating  to  any  corporation  subject  to 
any  of  the  provisions  of  this  act,  and  shall  detail  from  time  to 
time  such  officials  and  employees  to  the  Commission  as  he  may 
direct. 

Sec.  9.  That  for  the  purposes  of  this  act  the  Commission,  or 
its  duly  authorized  agent  or  agents,  shall  at  all  reasonable  times 
have  access  to,  for  the  purpose  of  examination,  and  the  right  to 
copy  any  documentary  evidence  of  any  corporation  being  in- 
vestigated or  proceeded  against ;  and  the^  Commission  shall  have 
power  to  require  by  subpoena  the  attendance  and  testimony  of 
witnesses  and  the  production  of  all  such  documentary  evidence 
relating  to  any  matter  under  investigation.  Any  member  of  the 
Commission  may  sign  subpoenas,  and  members  and  examiners 
of  the  Commission  may  administer  oaths  and  affirmations,  ex- 
amine witnesses,  and  receive  evidence. 

Such  attendance  of  witnesses,  and  the  production  of  such  docu- 
mentary evidence,  may  be  required  from  any  place  in  the  United 
States,  at  any  designated  place  of  hearing.  And  in  case  of  diso- 
bedience to  a  subpcena  the  Commission  may  invoke  the  aid  of 
any  court  of  the  United  States  in  requiring  the  attendance  and 
testimony  of  witnesses  and  the  production  of  documentary  evi- 
dence. 

Any  of  the  district  courts  of  the  United  States  within  the 
jurisdiction  of  which  such  inquiry  is  carried  on  may,  in  case  of 
contumacy  or  refusal  to  obey  a  subpoena  issued  to  any  corpora- 
tion or  other  person,  issue  an  order  requiring  such  corporation 
or  other  person  to  appear  before  the  Commission,  or  to  produce 
documentary  evidence  if  so  ordered,  or  to  give  evidence  touch- 


Federal  Trade;  Commission  Act.  731 

ing  the  matter  in  question ;  and  any  failure  to  obey  such  order 
of  the  court  may  be  punished  by  such  court  as  a  contempt  thereof. 

Upon  the  appHcation  of  the  Attorney-General  of  the  United 
States,  at  the  request  of  the  Commission,  the  district  courts  of 
the  United  States  shall  have  jurisdiction  to  issue  writs  of  man- 
damus commanding  any  person  or  corporation  to  comply  with 
the  provisions  of  this  act  or  any  order  of  the  Commission 
made  in  pursuance  thereof. 

The  Commission  may  order  testimony  to  be  taken  by  deposi- 
tion in  any  proceeding  or  investigation  pending  under  this  act 
at  any  stage  of  such  proceeding  or  investigation.  Such  deposi- 
tions may  be  taken  before  any  person  designated  by  the  Com- 
mission and  having  power  to  administer  oaths.  Such  testimony 
shall  be  reduced  to  writing  by  the  person  taking  the  deposition,  or 
under  his  direction,  and  shall  then  be  subscribed  by  the  de- 
ponent. Any  person  may  be  compelled  to  appear  and  depose  and 
to  produce  documentary  evidence  in  the  same  manner  as  wit- 
nesses may  be  compelled  to  appear  and  testify  and  produce  doc- 
umentary evidence  before  the  Commission  as  hereinbefore  pro- 
vided. 

Witnesses  summoned  before  the  Commission  shall  be  paid  the 
same  fees  and  mileage  that  are  paid  witnesses  in  the  courts  of 
the  United  States,  and  witnesses  whose  depositions  are  taken  and 
the  persons  taking  the  same  shall  severally  be  entitled  to  the 
same  fees  as  are  paid  for  like  services  in  the  courts  of  the  United 
States. 

No  person  shall  be  excused  from  attending  and  testifying  or 
from  producing  documentary  evidence  before  the  Commission  or 
in  obedience  to  the  subpoena  of  the  Commission  on  the  ground  . 
or  for  the  reason  that  the  testimony  or  evidence,  documentary 
or  otherwise,  required  of  him  may  tend  to  criminate  him  or  sub- 
ject him  to  a  penalty  or  forfeiture.  But  no  natural  person  shall 
be  prosecuted  or  subjected  to  any  penalty  or  forfeiture  for  or 
on  account  of  any  transaction,  matter,  or  thing  concerning  which 
he  may  testify,  or  produce  evidence,  documentary  or  otherwise, 
Ijef ore  the  Commission  in  obedience  to  a  subpoena  issued  by  it : 
Provided,  That  no  natural  person  so  testifying  shall  be  exempt 
from  prosecution  and  punishment  for  perjury  committed  in  so 
testifying. 

Sec.  10.  That  any  person  who  shall  neglect  or  refuse  to  at- 
tend and  testify,  or  to  answer  any  lawful  inquiry,  or  to  produce 


7^2  Fedkrai,  Tradk  Commission  Act. 

documentary  evidence,  if  in  his  power  to  do  so,  in  obedience  to 
die  subpoena  or  lawful  requirement  of  the  Commission,  shall  be 
guilty  of  an  offense  and  upon  conviction  thereof  by  a  court  of 
competent  jurisdiction  shall  be  punished  by  a  fine  of  not  less 
than  $1,000  nor  more  than  $5,000,  or  by  imprisonment  for  not 
more  than  one  year,  or  by  both  such  fine  and  imprisonment. 

Any  person  who  shall  willfully  make,  or  cause  to  be  made,  any 
false  entry  or  statement  of  fact  in  any  report  required  to  be 
made  under  this  act,  or  who  shall  willfully  make,  or  cause  to  be 
made,  any  false  entry  in  any  account,  record,  or  memorandum 
kept  by  any  corporation  subject  to  this  act,  or  who  shall  willfully 
neglect  or  fail  to  make,  or  to  cause  to  be  made,  full,  true,  and 
correct  entries  in  such  accounts,  records,  or  memoranda  of  all 
facts  and  transactions  appertaining  to  the  business  of  such  cor- 
poration, or  who  shall  willfully  remove  out  of  the  jurisdiction 
of  the  United  States,  or  willfully  mutilate,  alter,  or  by  any  other 
means  falsify  any  documentary  evidence  of  such  corporation,  or 
who  shall  willfully  refuse  to  submit  to  the  Commission  or  to  any 
of  its  authorized  agents,  for  the  purpose  of  inspection  and  tak- 
ing copies,  any  documentary  evidence  of  such  corporation  in  his 
possession  or  within  his  control,  shall  be  deemed  guilty  of  an 
offense  against  the  United  States,  and  shall  be  subject,  upon 
conviction  in  any  court  of  the  United  States  of  competent  ju- 
risdiction, to  a  fine  of  not  less  than  $1,000  nor  more  than  $5,000, 
or  to  imprisonment  for  a  term  of  not  more  than  three  years,  or 
to  both  such  fine  and  imprisonment. 

If  any  corporation  required  by  this  act  to  file  any  annual  or 
special  report  shall  fail  so  to  do  within  the  time  fixed  by  the 
Commission  for  filing  the  same,  and  such  failure  shall  continue 
for  thirty  days  after  notice  of  such  default,  the  corporation  shall 
forfeit  to  the  United  States  the  sum  of  $100  for  each  and  every 
day  of  the  continuance  of  such  failure,  which  forfeiture  shall 
be  payable  into  the  Treasury  of  the  United  States,  and  shall  be 
recoverable  in  a  civil  suit  in  the  name  of  the  United  States 
brought  in  the  district  where  the  corporation  has  its  principal 
office  or  in  any  district  in  which  it  shall  do  business.  It  shall  be 
the  duty  of  the  various  district  attorneys,  under  the  direction  of 
the  Attorney-General  of  the  United  States,  to  prosecute  for  the 
recovery  of  forfeitures.  The  costs  and  expenses  of  such  prose- 
cution shall  be  paid  out  of  the  appropriation  for  the  expenses 
of  the  courts  of  the  United  States. 


Federal  Trade  Commission  Act.  7ZZ 

Any  officer  or  employee  of  the  Commission  who  shall  make 
public  any  information  obtained  by  the  Commission  without  its 
authority,  unless  directed  by  a  court,  shall  be  deemed  guilty  of  a 
misdemeanor,  p.nd,  upon  conviction  thereof,  shall  be  punished  by 
a  fine  not  exceeding  $5,000,  or  by  imprisonment  not  exceeding 
one  year,  or  by  fine  and  iniprisonment,  in  the  discretion  of  the 
court. 

Sec.  11.  Nothing  contained  in  this  act  shall  be  construed  to 
prevent  or  interfere  with  the  enforcement  of  the  provisions  of 
the  Anti-Trust  Acts  or  the  act  to  regulate  commerce,  nor  shall 
anything  contained  in  the  act  be  construed  to  alter,  modify,  or 
repeal  the  said  Anti-Trust  acts  or  the  acts  to  regulate  commerce 
or  any  part  or  parts  thereof. 

Approved,  September  26,  1914. 


CONTENTS. 
Of  Appendices,   B  to  J  Inclusive 


,  Page. 

An  act  to  promote  the  safety  of  employees  and  travelers  upon 
railroads  by  compelling  common  carriers  engaged  in  inter- 
state commerce  to  equip  their  cars  with  automatic  couplers 
and  continuous  brakes,  and  their  locomotives  with  driving- 
wheel  brakes,  and  for  other  purposes,  approved  March  2, 
1893  (27  Statutes  at  Large,  531),  as  amended  by  an  act  ap- 
proved April  1,   1S96   (29   Statutes  at   Large,   85) 735 

An  act  to  amend  an  act  entitled  an  act  to  promote  the  safety  of 
employees  and  travelers,  and  so  forth,  approved  March  2, 
1893,  amended  April  1,  1896;  approved  March  2.  1903  (32  Stat- 
utes   at    Large,    943) 738 

An  act  to  supplement  an  act  to  promote  the  safety  of  employees 
and  travelers  upon  railroads  by  compelling  common  carriers 
engaged  in  interstate  commerce  to  equip  their  cars  with  auto- 
matic couplers  and  continuous  brakes,  and  their  locomotives 
with  driving-wheel  brakes,  and  for  other  purposes,  and  other 
safety-appliance  acts,  and  for  other  purposes  approved  April 
14,  1910  (36  Statutes  at  Large,  298);  also  amendment  of 
March  4,  1911   (36  Statutes  at  Large,  1397) 740 

An    act   authorizing   the    Commission    to   employ   safety-appliance 

inspectors,  approved  June  28,  1902  (32  Statutes  at  Large,  444).  743 

An  act  requiring  common  carriers  engaged  in  interstate  and  for- 
eign commerce  to  make  full  reports  of  all  accidents  to  the 
Interstate  Commerce  Commission  and  authorizing  investiga- 
tion, thereof  by  said  Commission,  approved  May  6,  1910  (36 
Statutes   at   Large,   350) 744 

An  act  to  promote  the  security  of  travel  upon  railroads  engaged 
in  interstate  commerce,  and  to  encourage  the  saving  of  life, 
approved  February  23.  1905  (33  Statutes  at  Large,  743).  and 
regulations    prescribed  thereunder 746 

An  act  to  promote  the  safety  of  employees  and  travelers  upon 
railroads  by  limiting  the  hours  of  service  of  employees 
thereon,  approved  March  4,  1907   (34  Statutes  at  Large.  1415).  749 

An  act  to  promote  the  safety  of  employees  on  railroads,  approved 

May  30,  1908  (35  Statutes  at  Large,  476) 753 

An  act  to  promote  the  safe  transportation  in  interstate  commerce 
of  explosives  and  other  dangerous  articles,  and  to  provide 
penalties  for  its  violation,  approved  Alarch  4.  1909  (35  Stat- 
utes   at    Large.    1134) 754 

An  act  to  promote  the  safety  of  employees  and  travelers  upon 
railroads  by  compelling  common  carriers  engaged  in  inter- 
state commerce  to  equip  their  locomotives  with  safe  and 
suitable  boilers  and  appurtenances  thereto,  approved  Febru- 
ary 17.   1911    (36   Statutes   at   Large.   913) 757 

734 


I 


APPENDIX  B. 

SAFETY  APPLIANCE  ACTS. 


AN  ACT  to  promote  the  safety  of  employees  and  travelers  upon  rail- 
roads by  compelling  common  carriers  engaged  in  interstate 
commerce  to  equip  their  cars  with  automatic  couplers  and  con- 
tinuous brakes  and  their  locomotives  with  driving-wheel  brakes, 
and  for  other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled,  That 
from  and  after  the  first  day  of  January,  eighteen  hundred  and 
ninety-eight,  it  shall  be  unlawful  for  any  common  carrier  en- 
gaged in  interstate  commerce  by  railroad  to  use  on  its  line  any 
locomotive  engine  in  moving  interstate  traffic  not  equipped  with 
a  power  driving-wheel  brake  and  appliances  for  operating  the 
train-brake  system,  or  to  run  any  train  in  such  traffic  after  said 
date  that  has  not  a  sufficient  number  of  cars  in  it  so  equipped 
with  power  or  train  brakes  that  the  engineer  on  the  locomotive 
drawing  such  train  can  control  its  speed  without  requiring  brake- 
men  to  use  the  common  hand  brake  for  that  purpose. 

Sec.  2.  That  on  and  after  the  first  day  of  January,  eighteen 
hundred  and  ninety-eight,  it  shall  be  unlawful  for  any  such  com- 
mon carrier  to  haul  or  permit  to  be  hauled  or  used  on  its  line  any 
car  used  in  moving  interstate  traffic  not  equipped  with  couplers 
coupling  automatically  by  impact,  and  which  can  be  uncoupled 
without  the  necessity  of  men  going  between  the  ends  of  the  cars. 

Sec.  3.  That  when  any  person,  firm,  comj^any.  or  corporation 
engaged  in  interstate  commerce  by  railroad  shall  have  ecjuipped 
a  sufficient  number  of  its  cars  so  as  to  comply  with  the  provisions 
of  section  one  of  this  act,  it  may  lawfully  refuse  to  receive  from 
connecting  lines  of  road  or  shippers  any  cars  not  equipped  suffi- 
ciently, in  accordance  with  the  first  section  of  this  act,  with  such 
power  or  train  brakes  as  will  work  and  readily  interchange  with 
the  brakes  in  use  on  its  own  cars,  as  required  by  this  act. 

Sec.  4.  That  from  and  after  the  first  day  of  July,  eighteen 
hundred  and  ninety-five,  until  otherwise  ordered  by  the  Interstate 
Commerce  Commission,  it  shall  be  unlawful  for  any  railroad 
company  to  use  any  car  in  interstate  commerce  that  is  not  pro- 

735 


7Z6  Safi^ty  AppLiAxcii  Acts. 

vided  with  secure  grab  irons  or  handholds  in  the  ends  and  sides 
of  each  car  for  greater  security  to  men  in  couphng  and  uncoupling 
cars. 

Fee.  5.  That  within  ninety  days  from  the  'passage  of  this  act 
the  American  Railway  Association  is  authorized  hereby  to  desig- 
nate to  the  Interstate  Commerce  Commission  the  standard  height 
of  drawbars  for  freight  cars,  measured  perpendicular  from  the 
level  of  the  tops  of  the  rails  to  the  centers  of  the  drawbars,  for 
each  of  the  several  gauges  of  railroads  in  use  in  the  United 
States,  and  shall  fix  a  maximum  variation  from  such  standard 
height  to  be  allowed  between  the  drawbars  of  empty  and  loaded 
cars.  Upon  their  determination  being  certified  to  the  Interstate 
Commerce  Commission,  said  Commission  shall  at  once  give  no- 
tice of  the  standard  fixed  upon  to  all  common  carriers,  owners, 
or  lessees  engaged  in  interstate  commerce  in  the  United  States 
by  such  means  as  the  Commission  may  deem  proper.  But  should 
said  association  fail  to  determine  a  standard  as  above  provided, 
it  shall  be  the  duty  of  the  Interstate  Commerce  Commission  to  do 
so,  before  July  first,  eighteen  hundred  and  ninety-four,  and  im- 
mediately to  give  notice  thereof  as  aforesaid.  And  after  July 
first,  eighteen  hundred  and  ninety-five,  no  cars,  either  loaded  or 
unloaded,  shall  be  used  in  interstate  traffic  which  do  not  comply 
with  the  standard  above  provided  for. 

Sec.  6.  (As  amended  April  i,  i8p6.)  That  any  such  common 
carrier  using  any  locomotive  engine,  running  any  train,  or  hauling 
or  permitting  to  be  hauled  or  used  on  its  line  any  car  in  violation 
of  any  of  the  pro\isions  of  this  act,  shall  be  liable  to  a  penalty 
of  one  hundred  dollars  for  each  and  every  such  violation,  to  be 
recovered  in  a  suit  or  suits  to  be  brought  by  the  United  States 
district  attorney  in  the  district  court  of  the  United  States  having 
jurisdiction  in  the  locality  where  such  violation  shall  have  been 
committed ;  and  it  shall  be  the  duty  of  such  district  attorney  to 
bring  such  suits  upon  duly  verified  information  being  lodged  with 
him  of  such  violation  having  occurred ;  and  it  shall  also  be  the 
duty  of  the  Interstate  Commerce  Commission  to  lodge  with  the 
proper  district  attorneys  information  of  any  such  violations  as 
may  come  to  its  knowledge :  Provided,  That  nothing  in  this  act 
contained  shall  apply  to  trains  composed  of  four-wheel  cars  or 
to  trains  composed  of  eight-wheel  standard  logging  cars  where 
the  height  of  such  car  from  top  of  rail  to  center  of  coupling  does. 


Safety  Appliance  Acts.  1Z7 

not  exceed  twenty-five  inches,  or  to  locomotives  used  in  hauling 
such  trains  when  such  cars  or  locomotives  are  exclusively  used 
for  the  transportation  of  logs. 

Sec.  7.  That  the  Interstate  Commerce  Commission  may  from 
time  to  time  upon  full  hearing  and  for  good  cause  extend  the 
period  within  which  any  common  carrier  shall  comply  With  the 
provisions  of  this  act. 

Sec.  8.  That  any  employee  of  any  such  common  carrier  who 
may  be  injured  by  any  locomotive,  car,  or  train  in  use  contrary 
to  the  provisions  of  this  act  shall  not  be  deemed  thereby  to  have 
assumed  the  risk  thereby  occasioned,  although  continuing  in  the 
employment  of  such  carrier  after  the  unlawful  use  of  such  loco- 
motive, car,  or  train  had  been  brought  to  his  knowledge. 

Public,  No.  113,  approved  March  2,  1893,  amended  April  1, 
1896. 

Note. — Prescribed  standard  height  of  drawbars:  Standard-gauge 
roads,  34^  inches;  narrow-gauge  roads,  26  inches;  maximum  varia- 
tion between  loaded  and  empty  cars,  3  inches. 

—  24 


APPENDIX  C. 

An  ACT  to  amend  an  act  entitled  "An  act  to  promote  the  safety  of 
employees  and  travelers  upon  railroads  by  compelling  common 
carriers  engaged  in  interstate  commerce  to  equip  their  cars  with 
automatic  couplers  and  continuous  brakes  and  their  locomotives 
with  driving-wheel  brakes,  and  for  other  purposes,"  approved 
March  second,  eighteen  hundred  and  ninety-three,  and  amended 
April    first,   eighteen   hundred   and   ninety-six.' 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  Umted  States  of  America  in  Congress  assembled,  That  the 
provisions  and  requirements  of  the  act  entitled  "An  act  to  pro- 
mote the  safety  of  employees  and  travelers  upon  railroads  by 
compelling  common  carriers  engaged  in  interstate  commerce  to 
equip  their  cars  with  automatic  couplers  and  continuous  brakes, 
and  their  locomotives  with  driving-wheel  brakes,  and  for  other 
purposes,''  approved  ^larch  second,  eighteen  hundred  and  ninety- 
three,  and  amended  April  first,  eighteen  hundred  and  ninety-six, 
shall  be  held  to  apply  to  common  carriers  by  railroads  in  the  ter- 
ritories and  the  District  of  Columbia  and  shall  apply  in  all  cases, 
whether  or  not  the  couplers  brought  together  are  of  the  same 
kind,  make,  or  type ;  and  the  provisions  and  requirements  hereof 
and  of  said  acts  relating  to  train  brakes,  automatic  couplers,  grab 
irons,  and  the  height  of  drawbars  shall  be  held  to  apply  to  all 
trains,  locomotives,  tenders,  cars,  and  similar  vehicles  used  on 
any  railroad  engaged  in  interstate  commerce,  and  in  the  terri- 
tories and  the  District  of  Columbia,  and  to  all  other  locomotives, 
tenders,  cars,  and  similar  vehicles  used  in  connection  therewith, 
excepting  those  trains,  cars,  and  locomotives  exempted  by  the 
provisions  of  section  six  of  said  act  of  ^Nlarch  second,  eighteen 
hundred  and  ninety-three,  as  amended  by  the  act  of  April  first, 
eighteen  hundred  and  ninety-six.  or  which  are  used  upon  street 
railways. 

Sec.  2.  Tliat  whene\er,  as  provided  in  said  act,  any  train  is 
operated  with  power  or  train  brakes,  not  less  than  fifty  per 
centum  of  the  cars  in  such  train  shall  have  their  brakes  used  and 
operated  by  the  engineer  of  the  locomotive  drawing  such  train; 
and  all  ]!Ower-braked  cars  in  such  train  which  are  associated  to- 
gether with  said  fifty  per  centum  shall  have  their  breaks  so  usedj 

738 


Safety  Appliance  Acts.  739 

antl  operated:  and,  to  more  fully  carry  into  effect  the  objects  of 
said  act,  the  Interstate  Commerce  Commission  may,  from  time  to 
time,  after  full  hearing,  increase  the  minimum  percentage  of  cars 
in  any  train  required  to  be  operated  with  power  or  train  brakes 
which  must  have  their  brakes  used  and  operated  as  aforesaid ; 
and  failure  to  comply  with  any  such  requirement  of  the  said  In- 
terstate Commerce  Commission  shall  be  subject  to  the  like  pen- 
alty as  failure  to  comply  with  any  requirement  of  this  section. 

Sec.  3.  That  the  provisions  of  this  act  shall  not  take  efifect  un- 
til September  first,  nineteen  hundred  and  three.  Nothing  in  this 
act  shall  be  held  or  construed  to  relieve  any  common  carrier,  the 
Interstate  Commerce  Commission,  or  any  United  States  district 
attorney  from  any  of  the  provisions,  powers,  duties,  liabilities,  or 
requirements  of  said  act  of  ^Nlarch  second,  eighteen  hundred  and 
ninety-three,  as  amended  by  the  act  of  April  first,  eighteen  hun- 
dred and  ninety-six ;  and  all  of  the  provisions,  powers,  duties, 
requirements,  and  liabilities  of  said  act  of  ^^farch  second, 
eighteen  hundred  and  ninety-three,  as  amended  by  the  act  of 
April  first,  eighteen  hundred  and  ninety-six,  shall,  except  as  spe- 
cifically amended  by  this  act.  apply  to  this  act. 

Public,  No.  133,  approved  March  2,  1903. 


APPENDIX   D 

AN  ACT  To  supplement  "An  act  to  promote  the  safety  of  employ- 
ees and  travelers  upon  railroads  by  compelling  common  carriers 
engaged  in  interstate  commerce  to  equip  their  cars  with  automa- 
tic couplers  and  continuous  brakes  and  their  locomotives  with 
driving  wheel  brakes  and  for  other  purposes,"  and  other  safety 
appliance   Acts,   and   for   other   purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  the 
provisions  of  this  act  shall  apply  to  every  common  carrier  and 
every  vehicle  subject  to  the  act  of  March  second,  eighteen  hun- 
dred and  ninety-three,  as  amended  April  first,  eighteen  hundred 
and  ninety-six,  and  March  second,  nineteen  hundred  and  three, 
commonly    known  as  the  "Safety  Appliance  Acts." 

Sec.  2.  That  on  and  after  July  first,  nineteen  hundred  and 
eleven,  it  shall  be  unlawful  for  any  common  carrier  subject  to 
the  provisions  of  this  act  to  haul,  or  permit  to  be  hauled  or  used 
on  its  line  any  car  subject  to  the  provisions  of  this  act  not 
equipped  with  appliances  provided  for  in  this  act,  to  wit :  All 
cars  must  be  equipped  with  secure  sill  steps  and  efficient  hand 
brakes ;  all  cars  requiring  secure  ladders  and  secure  running 
boards  shall  be  equipped  with  such  ladders  and  running  boards, 
and  all  cars  having  ladders  shall  also  be  equipped  with  secure 
hand  holds  or  grab  irons  on  their  roofs  at  the  tops  of  such  lad- 
ders :  Provided,  That  in  the  loading  and  hauling  of  long  com- 
modities, requiring  more  than  one  car,  the  hand  brakes  may  be 
omitted  on  all  save  one  of  the  cars  while  they  are  thus  combined 
for  such  purpose. 

Sec.  3.  That  within  six  months  from  the  passage  of  this  act 
the  Interstate  Commerce  Commission,  after  hearing,  shall  desig- 
nate the  number,  dimensions,  location,  and  manner  of  application 
of  the  ap]3liances  provided  for  by  section  two  of  this  act  and  sec- 
tion four  of  the  act  of  ]\Iarch  second,  eighteen  hundred  and 
ninety-three,  and  shall  give  notice  of  such  designation  to  all  com- 
mon carriers  subject  to  the  provisions  of  this  act  by  such  means 
as  the  Commission  may  deem  proper,  and  thereafter  said  num- 
ber, location,  dimensions,  and  manner  of  application  as  desig- 
nated by  said  Commission  shall  remain  as  the  standards  of  equip- 

740 


Safety  Appliance  Acts.  741 

ment  to  be  used  on  all  cars  subject  to  the  provisions  of  this 
act,  unless  changed  by  an  order  of  said  Interstate  Commerce 
Commission,  to  be  made  after  full  hearing  and  for  good  cause 
shown ;  and  failure  to  comply  with  any  such  requirement  of  the 
Interstate  Commerce  Commission  shall  be  subject  to  a  like  pen- 
alty as  failure  to  comply  with  any  requirement  of  this  act :  Pro- 
vided, That  the  Interstate  Commerce  Commission  may,  upon  full 
hearing  and  for  good  cause,  extend  the  period  within  which  any 
common  carrier  shall  comply  with  the  provisions  of  this  section 
with  respect  to  the  equipment  of  cars  actually  in  service  upon 
the  date  of  the  passage  of  this  act.  Said  Commission  is  hereby 
given  authority,  after  hearing,  to  modify  or  change,  and  to  pre- 
scribe the  standard  height  of  drawbars  and  to  fix  the  time  within 
which  such  modification  or  change  shall  become  effective  and 
obligatory,  and  prior  to  the  time  so  fixed  it  shall  be  unlawful  to 
use  any  car  or  vehicle  in  interstate  or  foreign  traffic  which  does 
not  comply  with  the  standard  now  fixed  or  the  standard  so  pre- 
scribed, and  after  the  time  so  fixed  it  shall  be  unlawful  to  use 
any  car  or  vehicle  in  interstate  or  foreign  traffic  which  does  not 
comply  with  the  standard  so  prescribed  by  the  Commission. 

Sec.  4.  That  any  common  carrier  subject  to  this  act  using, 
hauling,  or  permitting  to  be  used  or  hauled  on  its  line  any  car 
subject  to  the  requirements  of  this  act  not  equipped  as  provided 
in  this  act  shall  be  liable  to  a  penalty  of  one  hundred  dollars  for 
each  and  every  such  violation,  to  be  recovered  as  provided  in 
section  six  of  the  act  of  March  second,  eighteen  hundred  and 
ninety-three,  as  amended  April  first,  eighteen  hundred  and 
ninety-six :  Prcnnded,  That  where  any  car  shall  have  been  prop- 
erly equipped,  as  provided  in  this  act  and  the  other  acts  men- 
tioned herein,  and  such  equipment  shall  have  become  defective  or 
insecure  while  such  car  was  being  used  by  such  carrier  upon  its 
line  of  railroad,  such  car  may  be  hauled  from  the  place  where 
such  equipment  was  first  discovered  to  be  defective  or  insecure 
to  the  nearest  available  point  where  such  car  can  be  repaired, 
without  liability  for  the  penalties  imposed  by  section  four  of  this 
act  or  section  six  of  the  act  of  March  second,  eighteen  hundred 
and  ninety-three,  as  amended  by  the  act  of  April  first,  eighteen 
hundred  and  ninety-six,  if  such  movement  is  necessary  to  make 
such  repairs  and  such  repairs  can  not  be  made  except  at  such  re- 
pair point;  and  such  movement  or  hauling  of  such  car  shall  be  at 


742  Safety  Appliance  Acts. 

the  sole  risk  of  the  carrier,  and  nothing  in  this  section  shall  be 
construed  to  relieve  such  carrier  from  liability  in  any  remedial  ac- 
tion for  the  death  or  injury  of  any  railroad  employee  caused  to 
such  employee  by  reason  of  or  in  connection  with  the  movement 
or  hauling  of  such  car  with  equipment  which  is  defective  or  in- 
secure or  which  is  not  maintained  in  accordance  with  the  require- 
ments of  this  act  and  the  other  acts  herein  referred  to;  and  noth- 
ing in  this  proviso  shall  be  construed  to  permit  the  hauling  of  de- 
fective cars  by  means  of  chains  instead  of  drawbars,  in  revenue 
trains  or  in  association  with  other  cars  that  are  oommercially 
used,  unless  such  defective  cars  contain  live  stock  or  "perish- 
able" freight. 

Sec.  5  That  except  that,  within  the  limits  specified  in  the  pre- 
ceding section  of  this  act,  the.  movement  of  a  car  with  defective 
or  insecure  equipment  may  be  made  without  incurring  the  pen- 
alty provided  by  the  statutes,  but  shall  in  all  other  respects  be 
unlawful,  nothing  in  this  act  shall  be  held  or  construed  to  relieve 
any  common  carrier,  the  Interstate  Commerce  Commission,  or 
any  United  States  attorney  from  any  of  the  provisions,  powers, 
duties,  liabilities,  or  requirements  of  said  act  of  March  second, 
eighteen  hundred  and  ninety -three,  as  amended  by  the  acts  of 
April  first,  eighteen  hundred  and  ninety-six,  and  March  second, 
nineteen  hundred  and  three ;  and,  except  as  aforesaid,  all  of  the 
provisions,  powers,  duties,  requirements,  and  liabilities  of  said 
act  of  March  second,  eighteen  hundred  and  ninety-three,  as 
amended  by  the  acts  of  April  first,  eighteen  hundred  and  ninety- 
six,  and  March  second,  nineteen  hundred  and  three,  shall  apply 
to  this  act. 

Sec.  6.  That  it  shall  be  the  duty  of  the  Interstate  Commerce 
Commission  to  enforce  the  provisions  of  this  act,  and  all  powers 
heretofore  granted  to  said  Commission  are  hereby  extended  to 
it  for  the  purpose  of  the  enforcement  of  this  act. 

That  the  jurisdiction  of  the  Interstate  Commerce  Commission 
to  extend  the  period  within  which  any  common  carrier  shall  com- 
ply with  the  provisions  of  section  three  of  the  act  entitled  "An 
act  to  supplement  'An  act  to  promote  the  safety  of  employees 
and  travelers  upon  railroads  by  compelling  common  carriers  en- 
gaged in  interstate  commerce  to  equip  their  cars  with  automatic 
couplers  and  continuous  brakes  and  their  locomotives  with  driv- 
ing-wheel brakes,  and  for  other  purposes,'  and  other  safety-ap- 


Safety  Appliance  Acts.  743 

pliance  acts,  and  for  other  purposes,"  approved  April  fourteenth, 
nineteen  hundred  and  ten,  shall  apply  to  cars  actually  placed  in 
service  between  the  date  of  the  passage  of  said  act  and  the  first 
day  of  July,  nineteen  hundred  and  eleven,  in  the  same  manner 
and  to  the  same  extent  that  it  applies  to  cars  actually  in  service 
upon  the  date  of  the  passage  of  said  act.     [36  Stat.  L.,  1397.] 

Public,   No.   133,  approved  April   14,    1910;   Public,   No.   525, 
approved  Alarch  4,  1911. 


Sundry  civil  act  (appropriations)  of  June  28,  1902,  author- 
izes Commission  to  employ  "inspectors  to  execute  and  enforce 
the  requirements  of  the  safety-appliance  act." 


APPENDIX  E 

ACCIDENT  REPORTS  ACT. 

AN  ACT  requiring  common  carriers  engaged  in  interstate  and  for- 
eign commerce  to  make  full  reports  of  all  accidents  to  the  In- 
terstate Commerce  Commission,  and  authorizing  investigations 
thereof  by   said   Commission. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  it 
shall  be  the  duty  of  the  general  manager,  superintendent,  or  other 
proper  officer  of  every  common  carrier  engaged  in  interstate  or 
foreign  commerce  by  railroad  to  make  to  the  Interstate  Com- 
merce Commission,  at  its  office  in  Washington,  District  of  Colum- 
bia, a  monthly  report,  under  oath,  of  all  collisions,  derailments^ 
or  other  accidents  resulting  in  injury  to  persons,  equipment,  or 
roadbed  arising  from  the  operation  of  such  railroad  under  such 
rules  and  regulations  as  may  be  prescribed  by  the  said  Commis- 
sion, which  report  shall  state  the  nature  and  causes  thereof  and 
the  circumstances  connected  therewith :  Provided,  That  here- 
after all  said  carriers  shall  be  relieved  from  the  duty  of  report- 
ing accidents  in  their  annual  financial  and  operating  reports  made 
to  the  Commission. 

Sec.  2.  That  any  common  carrier  failing  to  make  such  report 
within  thirty  days  after  the  end  of  any  month  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof  by  a  court 
of  competent  jurisdiction  shall  be  punished  by  a  fine  of  not  more 
than  one  hundred  dollars  for  each  and  every  offense  and  for 
every  day  during  w^hich  it  shall  fail  to  make  such  report  after 
the  time  herein  specified  for  making  the  same. 

Sec.  3.  That  the  Interstate  Commerce  Commission  shall  have 
authority  to  investigate  all  collisions,  derailments,  or  other  ac- 
cidents resulting  in  serious  injury  to  person  or  to  the  property 
of  a  railroad  occurring  on  the  line  of  any  common  carrier  en- 
gaged in  interstate  or  foreign  commerce  by  railroad.  The  Com- 
mission, or  any  impartial  investigator  thereunto  authorized  by 
said  Commission,  shall  have  authority  to  investigate  such  colli- 
sions, derailments,  or  other  accidents  aforesaid,  and  all  the  at- 
tending facts,  conditions,  and  circumstances,  and  for  that  pur- 

744 


Accident  Reports  Act.  745 

pose  may  subpoena  witnesses,  administer  oaths,  take  testimony, 
and  require  the  production  of  books,  papers,  orders,  memoranda, 
exhibits,  and  other  evidence,  and  shall  be  provided  by  said  car- 
riers with  all  reasonable  facilities :  Provided,  That  when  such 
accident  is  investigated  by  a  Commission  of  the  state  in  which  it 
occurred,  the  Interstate  Commerce  Commission  shall,  if  con- 
venient, make  any  investigation  it  may  have  previously  deter- 
mined upon,  at  the  same  time  as,  and  in  connection  with,  the 
state  Commission  investigation.  Said  Commission  shall,  when  it 
deems  it  to  the  public  interest,  make  reports  of  such  investiga- 
tions, stating  the  cause  of  accident,  together  with  such  recom- 
mendations as  it  deems  proper.  Such  reports  shall  be  made  pub- 
lic in  such  manner  as  the  Commission  deems  proper. 

Sec.  4.  That  neither  said  report  nor  any  report  of  said  investi- 
gation nor  any  part  thereof  shall  be  admitted  as  evidence  or  used 
for  any  purpose  in  any  suit  or  action  for  damages  growing  out  of 
any  matter  mentioned  in  said  report  or  investigation. 

Sec.  5.  That  the  Interstate  Commerce  Commission  is  author- 
ized to  prescribe  for  such  common  carriers  a  method  and  form 
for  making  the  reports  hereinbefore  provided. 

Sec.  6.  That  the  act  entitled  "x'\n  act  requiring  common  car- 
riers engaged  in  interstate  commerce  to  make  full  reports  of  all 
accidents  to  the  Interstate  Commerce  Commission,"  approved 
March  third,  nineteen  hundred  and  one,  is  hereby  repealed. 

Sec.  7.  That  the  term  "interstate  commerce,"  as  used  in  this 
act,  shall  include  transportation  from  any  state  or  territory  or 
the  District  of  Columbia  to  any  other  state  or  territory  or  the 
District  of  Columbia,  and  the  term  "foreign  commerce,"  as  used 
in  this  act,  shall  include  transportation  from  any  state  or  territory 
or  the  District  of  Columbia  to  any  foreign  country  and  from  any 
foreign  country  to  any  state  or  territory  or  the  District  of  Co- 
lumbia. 

Sec.  8.  That  this  act  shall  take  effect  sixty  days  after  its  pas- 
sage. 

Public,  No.  165,  approved  May  6,  1910. 


APPENDIX  F    • 

^lEDALS  OF  HONOR  ACT. 

AN  ACT  to  promote  the  security  of  travel  upon  railroads  engaged 
in  interstate  commerce,  and  to  encourage  the  saving  of  life. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  the 
President  of  the  United  States  be,  and  he  is  hereby,  authorized 
to  cause  to  be  prepared  bronze  medals  of  honor,  with  suitable 
emblematic  devices,  which  shall  be  bestowed  upon  any  persons 
who  shall  hereafter,  by  extreme  daring,  endanger  their  own  lives 
in  saving,  or  endeavoring  to  save,  lives  from  any  wreck,  disaster, 
or  grave  accident,  or  in  preventing  or  endeavoring  to  prevent 
such  wreck,'  disaster,  or  grave  accident,  upon  any  railroad  within 
the  United  States  engaged  in  interstate  commerce :  Provided, 
That  no  award  of  said  medal  shall  be  made  to  any  person  until 
sufficient  evidence  of  his  deserving  shall  have  been  furnished  and 
placed  on  file,  under  such  regulations  as  may  be  prescribed  by  the 
President  of  the  United  States. 

Sec.  2.  That  the  President  of  the  United  States  be,  and  he  is 
hereby,  authorized  to  issue  to  any  person  to  whom  a  medal  of 
honor  may  be  awarded  under  the  provisions  of  this  act  a  rosette 
or  knot,  to  be  worn  in  lieu  of  the  medal,  and  a  ribbon  to  be 
worn  with  the  medal;  said  rosette  or  knot  and  ribbon  to  be  each 
of  a  pattern  to  be  prescribed  by  the  President  of  the  United 
States :  Provided,  That  whenever  a  ribbon  issued  under  the  pro- 
visions of  this  act  shall  have  been  lost,  destroyed,  or  rendered 
unfit  for  use  without  fault  or  neglect  on  the  part  of  the  person  to 
whom  it  was  issued,  a  new  ribbon  shall  be  issued  to  such  person 
without  charge  therefor. 

Sec.  3.  That  the  appropriations  for  the  enforcement  and  exe- 
cution of  the  provisions  of  the  acts  to  promote  the  safety  of  em- 
ployees and  travelers  upon  railroads  are  hereby  made  available 
for  carrying  out  the  provisions  of  this  act. 

Public,  No.  98,  approved  February  23,  J905. 

REGULATIONS    Governing  the   award   of   life-saving   medals   under 

the  foregoing  Act.     Made  by  the  Presidents  of  the  United  States 

on  March  29,  1905. 

746 


Medals  (j1'  Honor  Act.  747 

1.  Applications  for  medals  under  this  act  should  be  addressed 
to  and  filed  with  the  Interstate  Commerce  Commission,  at  the 
city  of  Washington,  D.  C.  Satisfactory  evidence  of  the  facts 
upon  which  the  application  is  based  must  be  filed  in  each  case. 
This  evidence  should  be  in  the  form  of  affidavits  made  by  eye- 
witnesses, of  good  repute  and  standing,  testifying  of  their  own 
knowledge.  The  opinion  of  witnesses  that  the  person  for  whom 
an  award  is  sought  acted  with  extreme  daring  and  endangered 
his  life  is  not  sufficient,  but  the  affidavits  must  set  forth  the  facts 
in  detail  and  show  clearly  in  what  manner  and  to  what  extent 
life  was  endangered  and  extreme  daring  exhibited.  The  railroad 
upon  which  the  incident  occurred,  the  date,  time  of  day,  condi- 
tion of  the  weather,  the  names  of  all  persons  present  when  prac- 
ticable, and  other  pertinent  circumstances  should  be  stated.  The 
affidavits  should  be  made  before  an  officer  duly  authorized  to  ad- 
minister oaths  and  be  accompanied  by  the  certificate  of  some 
United  States  official  of  the  district  in  which  the  affiants  reside, 
such  as  a  judge  or  clerk  of  United  States  court,  district  attor- 
ney, or  postmaster,  to  the  effect  that  the  affiants  are  reputable 
and  creditable  persons.  If  the  affidavits  are  taken  before  an  of- 
ficer without  an  official  seal  his  official  character  must  be  certi- 
fied by  the  proper  officer  of  a  court  of  record  under  the  seal 
thereof. 

2.  Applications  for  medals,  together  with  all  affidavits  and 
other  evidence  received  in  connection  therewith,  shall  be  referred 
to  a  committee  of  five  persons,  consisting  of  the  secretary  of  the 
Commission,  the  chief  inspector  of  safety  appliances,  two  in- 
spectors of  safety  appliances  designated  by  the  Commission,  and 
the  clerk  of  the  safety-appliance  examining  board,  who  shall  act 
as  clerk  of  the  committee.  This  committee  shall  carefully  con- 
sider each  application  presented  and,  after  thoroughly  weighing 
the  evidence,  shall  jirepare  an  abstract  or  brief  covering  the  case 
and  file  the  same,  together  with  the  committee's  recommenda- 
tion, with  the  Commission,  which  brief  and  recommendation 
shall  be  transmitted  by  the  Commission  to  the  President  for  his 
approval.  The  committee  may,  with  the  approval  of  the  Com- 
mission, direct  any  inspector  of  safety  appliances  in  the  employ 
of  the  Commission  to  proceed  to  the  locality  where  the  service 
was  performed  for  whicli  a  medal  is  claimed,  and  make  a  per- 
sonal investigation  and  report  upon  the  facts  of  the  case,  which 


748  Medals  of  Honor  Act. 

report  shall  be  filed  and  made  a  part  of  the  evidence  considered 
by  the  committee. 

3.  Upon  final  approval  of  the  committee's  recommendation  by 
the  President  the  Commission  shall  take  such  measures  to  carry 
the  recommendation  into  effect  as  the  President  may  direct. 

4.  The  Commission  shall  cause  designs  to  be  prepared  for  the 
medal,  rosette,  and  ritbon  provided  for  by  the  act,  which  de- 
signs shall  be  submitted  to  the  President  for  his  approval. 


APPENDIX   G 

HOURS  OF  SERVICE  ACT. 

AN  ACT  to  promote  the  safety  of  employees  and  travelers' upon  rail- 
roads by  limiting  the  hours  of  service  of  employees  thereon. 

Be  if  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled.  That  the 
provisions  of  this  act  shall  apply  to  any  common  carrier  or  car- 
riers, their  officers,  agents,  and  employees,  engaged  in  the  trans- 
portation of  passengers  or  property  by  railroad  in  the  District  of 
Columbia  or  any  territory  of  the  United  States,  or  from  one 
state  or  territory  of  the  United  States  or  the  District  of  Colum- 
bia to  any  other  state  or  territory  of  the  United  States  or  the 
District  of  Colimibia,  or  from  any  place  in  the  United  States 
to  an  adjacent  foreign  country,  or  from  any  place  in  the  United 
States  through  a  foreign  country  to  any  other  place  in  the 
United  States.  The  term  "railroad"  as  used  in  this  act  shall  in- 
clude all  bridges  and  ferries  used  or  operated  in  connection  with 
any  railroad,  and  also  all  the  road  in  use  by  any  common  car- 
rier operating  a  railroad,  whether  owned  or  operated  under  a 
contract,  agreement,  or  lease ;  and  the  term  "employees"  as 
used  in  this  act  shall  be  held  to  mean  persons  actually  engaged 
in  or  connected  with  the  movement  of  any  train. 

Sec.  2.  That  it  shall  be  unlawful  for  any  common  carrier,  its 
officers  or  agents,  subject  to  this  act  to  require  or  permit  any  em- 
ployee subject  to  this  act  to  be  or  remain  on  duty  for  a  longer 
period  than  sixteen  consecutive  hours,  and  whenever  any  such 
employee  of  such  common  carrier  shall  have  been  continuously 
on  duty  for  sixteen  hours  he  shall  be  relieved  and  not  required 
or  permitted  again  to  go  on  duty  until  he  has  had  at  least  ten 
consecutive  hours  off  duty ;  and  no  such  employee  who  has 
been  on  duty  sixteen  hours  in  the  aggregate  in  any  twenty-four- 
hour  period  shall  be  required  or  permitted  to  continue  or  again 
go  on  duty  withotit  having  had  at  least  eight  consecutive  hours 
off  duty :  Provided,  That  no  operator,  train  dispatcher,  or  other 
employee  who  by  the  use  of  the  telegraph  or  telephone  dispatches, 
reports,  transmits,  receives,  or  delivers  orders  pertaining  to  or 

749 


750  •       Hours  of  Service  Act. 

affecting  train  movements  shall  be  required  or  permitted  to  be 
or  remain  on  duty  for  a  longer  period  than  nine  hours  in  any 
twenty-four-hour  period  in  all  towers,  offices,  places,  and  sta- 
tions continuously  operated  night  and  day,  nor  for  a  longer 
period  than  thirteen  hours  in  all  towers,  offices,  places,  and  sta- 
tions operated  only  during  the  daytime,  except  in  case  of 
emergency,  when  the  employees  named  in  this  proviso  may  be 
permitted  to  be  and  remain  on  duty  for  four  additional  hours  in 
a  twenty-four-hour  ])eriod  on  not  exceeding  three  days  in  any 
week :  Provided  fiirtlicr,  The  Interstate  Commerce  Commission 
may  after  full  hearing  in  a  particular  case  and  for  good  cause 
shown  extend  the  period  within  which  a  common  carrier  shall 
comply  with  the  provisions  of  this  jiroviso  as  to  such  case.         ' 

■  Sec.  3.  That  any  such  common  carrier,  or  any  officer  or  agent 
thereof,  requiring  or  permitting  any  employee  to  go,  be,  or  re- 
main on  duty  in  \  iolation  of  the  second  section  hereof,  shall  be 
liable  to  a  penalty  of  not  to  exceed  five  hundred  dollars  for  each 
and  every  violation,  to  be  recovered  in  a  suit  or  suits  to  be 
brought  by  the  L'nited  States  district  attorney  in  the  district 
court  of  the  United  States  having  jurisdiction  in  the  locality 
where  such  violation  shall  have  been  committed ;  and  it  shall  be 
the  duty  of  such  district  attorney  to  bring  such  suits  upon  satis- 
factory information  being  lodged  with  him;  but  no  such  suit^ 
shall  be  brought  after  the  expiration  of  one  year  from  the  date, 
of  such  violation  ;  and  it  shall  also  be  the  duty  of  the  Interstate 
Commerce  Commission  to  lodge  with  the  proper  district  at- ; 
torneys  information  of  any  such  violations  as  may  come  to  its 
knowledge.  In  all  prosecutions  under  this  act  the  common  car- 
rier shall  be  deemed  to  have  had  knowledge  of  all  acts  of  all  its 
officers  and  agents :  Provided,  That  the  provisions  of  this  act 
shall  not  apply  in  any  case  of  casualty  or  unavoidable  accident  ori 
the  act  of  God ;  nor  where  the  delay  was  the  result  of  a  cause  not 
known  to  the  carrier  or  its  officer  or  agent  in  charge  of  such  em- 
ployee at  the  time  said  employee  left  a  terminal,  and  which  could 
not  have  been  foreseen :  Provided  further,  That  the  provisions 
of  this  act  shall  not  apply  to  the  crews  of  wrecking  or  relief 
trains. 

Sec.  4.     It  shall  be  the  duty  of  the  Interstate  Commerce  Com- 
mission to  execute  and  enforce  the  provisions  of  this  act,  and  all 


Hours  of  Sijrvice  Act.  751 

powers   granted    to   the    Interstate    Commerce    Commission    are 
hereby  extended  to  it  in  the  execution  of  this  act. 

Sec.  5.     That  this  act  shall  take  effect  and  be  in   force  one 
year  after  its  passage. 

Public,  No.  274,  approved  March  4,  1907,  11.50  a.  m. 


APPENDIX  H. 


ASH-PAN  ACT. 


AN  ACT  to  promote  the  safety  of  employees  on  railroads. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  on 
and  after  the  first  day  of  January,  nineteen  hundred  and  ten,  it 
shall  be  unlawful  for  any  common  carrier  engaged  in  interstate 
or  foreign  commerce  by  railroad  to  use  any  locomotive  in  moving 
interstate  or  foreign  traffic,  not  equipped  with  an  ash  pan,  which 
can  be  dumped  or  emptied  and  cleaned  without  the  necessity  of 
any  employee  going  under  such  locomotive. 

Sec.  2.  That  on  and  after  the  first  day  of  January,  nineteen 
hundred  and  ten,  it  shall  be  unlawful  for  any  common  carrier  by 
railroad  in  any  territory  of  the  United  States  or  the  District  of 
Columbia  to  use  any  locomotive  not  equipped  with  an  ash  pan, 
which  can  be  dumped  or  emptied  and  cleaned  without  the  neces- 
sity of  any  employee  going  under  such  locomotive. 

Sec.  3.  That  any  such  common  carrier  using  any  locomotive 
in  violation  of  any  of  the  provisions  of  this  act  shall  be  liable  to 
a  penalty  of  two  hundred  dollars  for  each  and  every  such  viola- 
tion, to  be  recovered  in  a  suit  or  suits  to  be  brought  by  the  United 
States  district  attorney  in  the  district  court  of  the  United  States 
having  jurisdiction  in  the  locality  where  such  violation  shall  have 
been  committed ;  and  it  shall  be  the  duty  of  such  district  attorney 
to  bring  such  suits  upon  duly  verified  information  being  lodged 
with  him  of  such  violation  having  occurred ;  and  it  shall  also  be 
the  duty  of  the  Interstate  Commerce  Commission  to  lodge  with 
the  proped  district  attorneys  information  of  any  such  violations 
as  may  come  to  its  knowledge. 

Sec.  4.  That  it  shall  be  the  duty  of  the  Interstate  Commerce 
Commission  to  enforce  the  provisions  of  this  act,  and  all  powers 
heretofore  granted  to  said  Commission  are  hereby  extended  to 
it  for  the  purpose  of  the  enforcement  of  this  act. 

Sec.  5.  That  the  term  "common  carrier"  as  used  in  this  x\ct 
shall  include  the  receiver  or  receivers  or  other  persons  or  cor- 

752 


Ash-Pan  Act.  753 

porations  charged  with  the  duty  of  the  management  and  opera- 
tion of  the  business  of  a  common  carrier. 

Sec.  6.  That  nothing  in  this  act  contained  shall  apply  to  any 
locomotive  upon  which,  by  reason  of  the  use  of  oil,  electricity,  or 
other  such  agency,  an  ash  pan  is  not  necessary. 

Public,  No.  165,  approved  May  30,  1908. 


APPENDIX  I. 

TRAX SPORT ATIOX  OF  EXPLOSIVES  ACT. 

AN  ACT  to  promote  the  safe  transportation  in  interstate  commerce 
of  explosives  and  other  dangerous  articles,  and  to  provide  penal- 
ties for  its  violation. 

By  an  act  entitled  "An  act  to  codify,  revise,  and  amend  the 
penal  laws  of  the  United  States,"  approved  ]\Iarch  4,  1909,  to 
take  effect  and  be  in  force  on  and  after  the  first, day  of  January, 
1910,  the  act  entitled  "An  act  to  promote  the  safe  transportation 
in  interstate  commerce  of  explosives  and  other  dangerous  ar-  , 
tides,  and  to  provide  penalties  for  its  violation,"  approved  May 
30,  1908,  is  repealed,  and  the  follov^^ing  sections  of  said  Act  to 
codify,  revise,  and  amend  the  penal  laws  of  the  United  States 
are  substituted  'therefor : 

Sec.  232.  It  shall  be  unlawful  to  transport,  carry,  or  convey, 
any  dynamite,  gunpowder,  or  other  explosives,  between  a  place 
in  a  foreign  country  and  a  place  within  or  subject  to  the  juris- 
diction of  the  United  States,  or  between  a  place  in  any  state,  ter- 
ritory, or  District  of  the  United  States,  or  place  noncontiguous 
to  but  subject  to  the  jurisdiction  thereof,  and  a  place  in  any  other 
state,  territory,  or  District  of  the  United  States,  or  jDlace  noncon- 
tiguous to  but  subject  to  the  jurisdiction  thereof,  on  any  vessel 
or  vehicle  of  any  description  operated  by  a  common  carrier, 
which  vessel  or  vehicle  is  carrying  passengers  for  hire :  Protnded, 
That  it  shall  be  lawful  to  transport  on  any  such  vessel  or  vehicle 
small  arms  ammunition  in  any  quantity,  and  such  fuses,  torpe- 
does, rockets,  or  other  signal  devices,  as  may  be  essential  to  pro- 
mote safety  in  operation,  and  properly  packed  and  marked  sam- 
ples of  explosives  for  laboratory  examination,  not  exceeding  a 
net  weight  of  one-half  pound  each,  and  not  exceeding  twenty  sam- 
ples at  one  time  in  a  single  vessel  or  vehicle ;  but  such  samples 
shall  not  be  carried  in  that  part  of  a  vessel  or  vehicle  which  is 
intended  for  the  transportation  of  passengers  for  hire :  Pro- 
vided further,  That  nothing  in  this  section  shall  be  construed  to 
prevent  the  transportation  of  military  or  naval  forces  with  their 
accompanying  munitions  of  war  on  passenger  equipment  vessels 
or  vehicles. 

754 


I 


\ 


Transportation  of  Explosivks.  755 

Sec.  233.  The  Interstate  Commerce  Commission  shall  formu- 
late regulations  for  the  safe  transportation  of  explosives,  which 
shall  be  binding  upon  all  common  carriers  engaged  in  interstate 
or  foreign  commerce  which  transport  explosives  by  land.  Said 
Commission,  of  its  own  motion,  or  upon  application  made  by  any 
interested  party,  may  make  changes  or  modifications  in  such  regu- 
lations, made  desirable  by  new  information  or  altered  conditions. 
Such  regulations  shall  be  in  accord  with  the  best  known  practi- 
cable means  for  securing  safety  in  transit,  covering  the  packing, 
marking,  loading,  handling  while  in  transit,  and  the  precautions 
necessary  to  determine  whether  the  material  when  offered  is  in 
proper  condition  to  transport.  Such  regulations,  as  well  as  all 
changes  or  modifications  thereof,  shall  take  effect  ninety  days 
after  their  formulation  and  publication  by  said  Commission  and 
shall  be  in  effect  until  reversed,  set  aside,  or  modified. 

Sec.  234.  It  shall  be  unlawful  to  transport,  carry,  or  convey, 
liquid  nitroglycerin,  fulminate  in  bulk  in  dry  condition,  or  other 
like  explosive,  between  a  place  in  a  foreign  country  and  a  place 
within  or  subject  to  the  jurisdiction  of  the  United  States,  or  be- 
tween a  place  in  one  state,  territory,  or  District  of  the  United 
States,  or  a  place  noncontiguous  to  but  subject  to  the  jurisdiction 
thereof,  and  a  place  in  any  other  state,  territory,  or  District  of 
the  United  States,  or  place  noncontiguous  to  but  subject  to  the 
jurisdiction  thereof,  on  any  vessel  or  vehicle  of  any  description 
operated  by  a  common  carrier  in  the  transportation  of  passen- 
gers or  articles  of  commerce  by  land  or  water. 

Sec.  235.  Every  package  containing  explosives  or  other  dan- 
gerous articles  when  presented  to  a  common  carrier  for  shipment 
shall  have  plainly  marked  on  the  outside  thereof  the  contents 
thereof ;  and  it  shall  be  unlawful  for  any  person  to  deliver,  or 
cause  to  be  delivered,  to  any  common  carrier  engaged  in  inter- 
state or  foreign  commerce  by  land  or  water,  for  interstate  or 
foreign  transportation,  or  to  carry  upon  any  vessel  or  vehicle  en- 
gaged in  interstate  or  foreign  transportation,  any  explosive,  or 
other  dangerous  article,  under  any  false  or  deceptive  marking,  de- 
scription, invoice,  shipping  order,  or  other  declaration,  or  without 
informing  the  agent  of  such  carrier  of  the  true  character  thereof, 
at  or  before  the  time  such  delivery  or  carriage  is  made.  Who- 
ever shall  knowingly  violate,  or  cause  to  be  violated,  any  provi- 
sion of  this  section,  or  of  the  three  sections  last  preceding,  or  any 


756  Transportation  of  Explosives. 

regulation  made  by  the  Interstate  Commerce  Commission  in  pur- 
suance thereof,  shall  be  fined  not  more  than  two  thousand  dollars, 
or  imprisoned  not  more  than  eighteen  months,  or  both. 

Sec.  236.  When  the  death  or  bodily  injury  of  any  person  is 
caused  by  the  explosion  of  any  article  named  in  the  four  sections 
last  preceding,  while  the  same  is  being  placed  upon  any  vessel  or 
vehicle  to  be  transported  in  violation  thereof,  or  while  the  same 
is  being  so  transported,  or  while  the  same  is  being  removed  from 
such  vessel  or  vehicle,  the  person  knowingly  placing,  or  aiding 
or  permitting  the  placing,  of  such  articles  upon  any  such  vessel 
or  vehicle,  to  be  so  transported,  shall  be  imprisoned  not  more 
than  ten  years. 

Public,  No.  350,  approved  March  4.  1909. 


APPENDIX  J. 

BOILER  INSPECTION  ACT. 

AN  ACT  to  promote  the  safety  of  employees  and  travelers  upon  rail- 
roads by  compelling  common  carriers  engaged  in  interstate  com- 
merce to  equip  their  locomotives  with  safe  and  suitable  boilers 
and   appurtenances   thereto. 

Be  it  enacted  by  the  Sen-ate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  the 
provisions  of  this  act  shall  apply  to  any  common  carrier  or  car- 
riers, their  officers,  agents,  and  employees,  engaged  in  the  trans- 
portation of  passengers  or  property  by  railroad  in  the  District  of 
Columbia,  or  in  any  territory  of  the  United  States,  or  from  one 
state  or  territory  of  the  United  States  or  the  District  of  Columbia 
to  any  other  state  or  territory  of  the  United  States  or  the  District 
of  Columbia,  or  from  any  place  in  the  United  States  to  an  adja- 
cent foreign  country,  or  from  any  place  in  the  United  States 
through  a  foreign  country  to  any  other  place  in  the  United 
States.  The  term  "railroad"  as  used  in  this  act  shall  include  all 
the  roads  in  use  by  any  common  carrier  operating  a  railroad, 
whether  owned  or  operated  under  a  contract,  agreement,  or  lease, 
and  the  term  "employees"  as  used  in  this  act  shall  be  held  to 
mean  persons  actually  engaged  in  or  connected  with  the  move- 
ment of  any  train. 

Sec.  2.  That  from  and  after  the  first  day  of  July,  nineteen 
hundred  and  eleven,  it  shall  be  unlawful  for  any  common  carrier, 
its  officers  or  agents,  subject  to  this  act  to  use  any  locomotive  en- 
gine propelled  by  steam  power  in  moving  interstate  or  foreign 
traffic  unless,  the  boiler  of  said  locomotive  and  appurtenances 
thereof  are  in  proper  condition  and  safe  to  operate  in  the  serv- 
ice to  which  the  same  is  put,  that  the  same  may  be  employed  in 
the  active  service  of  such  carrier  in  moving  traffic  without  un- 
necessary j)eril  to  life  or  limb,  and  all  boilers  shall  be  inspected 
from  time  to  time  in  accordance  with  the  provisions  of  this  act, 
and  be  able  to  withstand  such  test  or  tests  as  may  be  prescribed 
in  the  rules  and  regulations  hereinafter  provided  for. 

Sec.  3.  That  there  shall  be  appointed  by  the  President,  by  and 
with  the  advice  and  consent  of  the  Senate,  a  chief  ins])ector  and 

7S7 


758  PiDlLER    IXSPKCTIOX   AcT. 

two  assistant  chief  inspectors  of  locomotive  boilers,  who  shall 
have  general  superintendence  of  the  inspectors  hereinafter  pro- 
vided for,  direct  them  in  the  duties  hereby  imposed  upon  them, 
and  see  that  the  requirements  of  this  act  and  the  rules,  regula- 
tions, and  instructions  made  or  given  hereunder  are  observed  by 
common  carriers  subject  hereto.  The  said  chief  inspector  and 
his  two  assistants  shall  be  selected  with  reference  to  their  prac- 
tical knowledge  of  the  construction  and  repairing  of  boilers,  and 
to  their  fitness  and  ability  to  systematize  and  carry  into  effect  the 
provisions  hereof  relating  to  the  inspection  and  maintenance  of 
locomotive  boilers.  The  chief  inspector  shall  receive  a  salary  of 
four  thousand  dollars  per  year  and  the  assistant  chief  inspectors 
shall  each  receive  a  salary  of  three  thousand  dollars  per  year; 
and  each  of  the  three  shall  be  paid  his  traveling  expenses  in- 
curred in  the  performance  of  his  duties.  The  office  of  the  chief 
inspector  shall  be  in  Washington,  District  of  Columbia,  and  the 
Interstate  Commerce  Commission  shall  provide  such  stenographic 
and  clerical  help  as  the  business  of  the  offices  of  the  chief  in- 
spector and  his  said  assistants  may  require. 

Sec.  4.  That  immediately  after  his  appointment  and  qualifica- 
tion the  chief  inspector  shall  divide  the  territory  comprising  the 
several  states,  the  territories  of  New  Mexico  and  Arizona,  and 
the  District  of  Columbia  into  fifty  locomotive  boiler-inspection 
districts,  so  arranged  that  the  service  of  the  inspector  appointed 
for  each  district  shall  be  most  effective,  and  so  that  the  work  re- 
quired of  each  inspector  shall  be  substantially  the  same.  There- 
upon there  shall  be  appointed  by  the  Interstate  Commerce  Com- 
mission fifty  inspectors  of  locomotive  boilers.  Said  inspectors 
shall  be  in  the  classified  service  and  shall  be  appointed  after  com- 
petitive examination  according  to  the  law  and  the  rules  of  the 
Civil  Service  Commission  governing  the  classified  service.  The 
chief  inspector  shall  assign  one  inspector  so  appointed  to  each 
of  the  districts  hereinbefore  named.  Each  inspector  shall  receive 
a  salary  of  one  thousand  eight  hundred  dollars  per  year  and  his 
traveling  expenses  while  engaged  in  the  perfomiance  of  his  duty. 
He  shall  receive  in  addition  thereto  an  annual  allowance  for  of- 
fice rent,  stationery,  and  clerical  assistance,  to  be  fixed  by  the 
Interstate  Commerce  Commission,  but  not  to  exceed  in  the  case 
of  any  district  inspector  six  hundred  dollars  per  year.  In  order 
to  obtain  the  most  competent  inspectors  possible,  it  shall  be  the 


BoiLKR  IxspECTioN  Act.  759 

duty  of  the  chief  inspector  to  prepare  a  Hst  of  questions  to  be 
propounded  to  applicants  with  respect  to  construction,  repair, 
operation,  testing,  and  inspection  of  locomotive  boilers,  and  their 
practical  experience  in  such  work,  which  list,  being  approved  by 
the  Interstate  Commerce  Commission,  shall  be  used  by  the  Civil 
Service  Commission  as  a  part  of  its  examination.  No  person  in- 
terested, either  directly  or  indirectly,  in  any  patented  article  re- 
quired to  be  used  on  any  locomotive  under  supervision  or  who 
is  intemperate  in  his  habits  shall  be  eligible  to  hold  the  office  of 
either  chief  inspector  or  assistant  or  district  inspector. 

Sec.  5.  That  each  carrier  subject  to  this  act  shall  file  its  rules 
and  instructions  for  the  inspection  of  locomotive  boilers  with 
the  chief  inspector  within  three  months  after  the  approval  of  this 
act,  and  after  hearing  and  approval  by  the  Interstate  Commerce 
Commission,  such  rules  and  instructions,  with  such  modifications 
as  the  Commission  requires,  shall  become  obligatory  upon  such 
carrier:  Provided,  hoxvcvcr,  That  if  any  carrier  subject  to  this 
act  shall  fail  to  file  its  rules  and  instructions  the  chief  inspector 
shall  prepare  rules  and  instructions  not  inconsistent  herewith  for 
the  inspection  of  locomotive  boilers,  to  be  observed  by  such  car- 
rier; which  rules  and  instructions,  being  approved  by  the  Inter- 
state Commerce  Commission,  and  a  copy  thereof  being  served 
upon  the  president,  general  manager,  or  general  superintendent 
of  such  carrier,  shall  be  obligatory,  and  a  violation  thereof  pun- 
ished as  hereinafter  provided:  Provided  also,  That  such  com- 
mon carrier  may  from  time  to  time  change  the  rules  and  regula- 
tions herein  provided  for,  but  such  change  shall  not  take  effect 
and  the  new  rules  and  regulations  be  in  force  until  the  same 
shall  have  been  filed  with  and  approved  by  the  Interstate  Com- 
merce Commission.  The  chief  inspector  shall  also  make  all  need- 
ful rules,  regulations,  and  instructions  not  inconsistent  herewith 
for  the  conduct  of  his  office  and  for  the  government  of  the  dis- 
trict inspectors :  Pro7'idcd,  hozcever,  That  all  such  rules  and  in- 
structions shall  be  approved  by  the  Interstate  Commerce  Com- 
mission before  they  take  effect. 

Sec.  6.  That  it  shall  be  the  duty  of  each  inspector  to  become 
familiar,  so  far  as  practicable,  with  the  condition  of  each  locomo- 
tive boiler  ordinarily  housed  or  repaired  in  his  district,  and  if 
any  locomotive  is  ordinarily  housed  or  repaired  in  two  or  more 
districts,  then  the  chief  inspector  or  an  assistant  shall  make  such 


760  BoiLKR  Inspection  Act. 

division  between  inspectors  as  will  avoid  the  necessity  for  dupli- 
cation of  work.     Each  inspector  shall  make  such  personal  inspec- 
tion of  the  locomotive  boilers  under  his  care  from  time  to  time 
as  may  be  necessary  to  fully  carry  out  the  provisions  of  this  act, 
and  as  may  be  consistent  with  his  other  duties,  but  he  shall  not 
be  required  to  make  such  inspections  at  stated  times  or  at  regular 
intervals.     His  first  duty  shall  be  to  see  that  the  carriers  make 
inspections  in  accordance  with  the  rules  and  regulations  estab- 
lished or  approved  by  the  Interstate  Commerce  Commission,  and 
that  carriers  repair  the  defects  which  such  inspections  disclose 
before  the  boiler  or  boilers  or  appurtenances  pertaining  thereto 
are  again  put  in  service.    To  this  end  each  carrier  subject  to  this 
Act  shall  file  with  the  inspector  in  charge,  under  the  oath  of  the 
proper  ofiicer  or  employee,  a  duplicate  of  the  report  of  each  in- 
spection required  by  such  rules  and  regulations,  and  shall  also 
file  with  such  inspector,  under  the  oath  of  the  proper  officer  or 
employee,  a  report  showing  the  repair  of  the  defects  disclosed 
by  the  inspection.     The  rules  and  regulations  hereinbefore  pro- 
vided for  shall  prescribe  the  time  at  which  such  reports  shall  be 
made.     Whenever  any  district  inspector  shall,  in  the  performance 
of  his  duty,  find  any  locomotive  boiler  or  apparatus  pertaining 
thereto  not  conforming  to  the  requirements  of  the  law   or  the 
rules  and  regulations  established  and  approved  as  hereinbefore 
stated,  he  shall  notify  the  carrier  in  writing  that  the  locomotive 
is  not  in  serviceable  condition,  and  thereafter  such  boiler  shall 
not  be  used  until  in  serviceable  condition :    Provided,  That  a  car- 
rier, when  notified  by  an  inspector  in  writing  that  a  locomotive 
boiler  is  not  in  serviceable  condition  because  of  defects  set  out 
and  described  in  said  notice,  may,  within  five  days  after  receiving 
said  notice,  appeal  to  the  chief  inspector  by  telegraph  or  by  letter 
to  have  said  boiler  re-examined,  and  upon  receipt  of  the  appeal 
from  the  inspector's  decision  the  chief  inspector  shall  assign  one 
of  the  assistant  chief  inspectors  or  any  district  inspector  other 
than   the  one   from  whose  decision  the  appeal   is  taken  to  re- 
examine and  inspect  said  boiler  within  fifteen   days   from  date 
of  notice.     If  upon  such   reexamination   the  boiler  is   found  in 
serviceable  condition,  the  chief  inspector  shall  immediately  notify 
the  carrier  in  writing,  whereupon  such  boiler  may  be  put  into 
service  without  further  delay ;  but  if  the  reexamination  of  said 
boiler  sustains  the  decision  of  the  district  inspector,  the  chief  in- 


Boiler  Inspection  Act.  761 

spector  shall  at  once  notify  the  carrier  owning  or  operating  such 
locomotive  that  the  appeal  from  the  decision  of  the  inspector  is 
dismissed,  and  upon  the  receipt  of  such  notice  the  carrier  may, 
within  thirty  days,  appeal  to  the  Interstate  Commerce  Commis- 
sion, and  upon  such  appeal,  and  after  hearing,  said  Commission 
shall  have  power  to  revise,  modify,  or  set  aside  such  action  of 
the  chief  inspector  and  declare  that  said  locomotive  is  in  service- 
able condition  and  authorize  the  same  to  be  operated :  Provided 
further,  That  pending  either  appeal  the  requirements  of  the  in- 
spector shall  be  effective. 

Sec.  7.  That  the  chief  inspector  shall  make  an  annual  report 
to  the  Interstate  Commerce  Commission  of  the  work  done  during 
the  year,  and  shall  make  such  recommendations  for  the  better- 
ment of  the  service  as  he  may  desire. 

Sec.  8.  That  in  the  case  of  accident  resulting  from  failure 
from  any  cause  of  a  locomotive  boiler  or  its  appurtenances,  re- 
sulting in  serious  injury  or  death  to  one  or  more  persons,  a  state- 
ment forthwith  must  be  made  in  writing  of  the  fact  of  such  acci- 
dent, by  the  carrier  owning  or  operating  said  locomotive,  to  the 
chief  inspector;  whereupon  the  facts  concerning  such  accident 
shall  be  investigated  by  the  chief  inspector  or  one  of  his  assis- 
tants, or  such  inspector  as  the  chief  inspector  may  designate  for 
that  purpose.  And  where  the  locomotive  is  disabled  to  the  ex- 
tent that  it  can  not  be  run  by  its  own  steam,  the  part  or  parts 
affected  by  the  said  accident  shall  be  preserved  by  said  carrier 
intact,  so  far  as  possible,  without  hindrance  or  interference  to 
traffic  until  after  said  inspection.  The  chief  inspector  or  an  as- 
sistant or  the  designated  inspeotor  making  the  investigation  shall 
examine  or  cause  to  be  examined  thoroughly  the  boiler  or  part 
affected,  making  full  and  detailed  re]:)ort  of  the  cause  of  the  ac- 
cident to  the  chief  inspector. 

The  Interstate  Commerce  Commission  may  at  any  time  call 
upon  the  chief  inspector  for  a  report  of  any  accident  embraced 
in  this  section,  and  upon  the  receipt  of  said  report,  if  it  deems 
it  to  the  public  interest,  make  reports  of  such  investigations,  stat- 
ing the  cause  of  accident,  together  with  such  recommendations 
as  it  deems  pro]jer.  Such  reports  shall  be  made  public  in  such 
manner  as  the  Commission  deems  ])roper.  Neither  said  report 
nor  any  report  of  said  investigation  nor  any  ]X'irt  thereof  shall 
be  admitted  as  evidence  or  used  for  any  pur]iosc  in  any  suit  or 


762  Boiler  Inspection  Act. 

action  for  damages  grov^-ing  out  of  any  matter  mentioned  in  said 
report  or  investigation. 

Sec.  9.  That  any  common  carrier  violating  this  act  or  any 
rule  or  regulation  made  under  its  provisions  or  any  lawful  order 
of  any  inspector  shall  be  liable  to  a  penalty  of  one  hundred  dol- 
lars for  each  and  every  such  violation,  to  be  recovered  in  a  suit 
or  suits  to  be  brought  by  the  L'nited  States  attorney  in  the  dis- 
trict court  of  the  United  States  having  jurisdiction  in  the  locality 
where  such  violation  shall  have  been  committed ;  and  it  shall  be 
the  duty  of  such  attorneys,  subject  to  the  direction  of  the  Attor- 
ney-General, to  bring  such  suits  upon  duly  verified  information 
being  lodged  with  them,  respectively,  of  such  violations  having 
occurred ;  and  it  shall  be  the  duty  of  the  chief  inspector  of  loco- 
motive boilers  to  give  information  to  the  proper  United  States 
attorney  of  all  violations  of  this  act  coming  to  his  knowledge. 

Sec.  10.  That  the  total  amounts  directly  appropriated  to 
carry  out  the  provisions  of  this  act  shall  not  exceed  for  any  one 
fiscal  year  the  sum  of  three  hundred  thousand  dollars. 

Public,  No.  383,  approved  February  17,  1911. 


APPENDIX  K. 

EMPLOYER'S  LIABILITY  ACT. 

An  ACT  relating  to   the  liability  of  common   carriers   by  railroad   to 
their  employees   in   certain  cases. 

(Act  of  1908,  as  amended  by  the  Act  of  April  5,  1910.) 
Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled.  That  every 
common  carrier  by  railroad  while  engaging  in  commerce  between 
any  of  the  several  states  or  territories,  or  between  any  of  the 
states  and  territories,  or  between  the  District  of  Columbia  and 
any  of  the  states  or  territories,  or  between  the  District  of  Co- 
lumbia, or  any  of  the  states  or  territories  and  any  foreign  na- 
tion or  nations,  shall  be  liable  in  damages  to  any  person  suffering 
injury  while  he  is  employed  by  such  carrier  in  such  commerce, 
or  in  case  of  the  death  of  such  employee,  to  his  or  her  personal 
representative  for  the  benefit  of  the  sun-iving  widow  or  husband 
and  children  of  such  employee;  and  if  none,  then  of  such  em- 
ployee's parents,  and  if  none,  then  to  the  next  of  kin  dependent 
upon  such  employee  for  such  injury  or  death  resulting  in  whole 
or  in  part  from  the  negligence  of  any  of  the  officers,  agents  or 
employees  of  such  carrier,  or  by  reason  of  any  defect  or  insuf- 
ficiency due  to  its  negligence,  in  its  cars,  engines,  appliances, 
machinery,  track,  road-bed,  works,  boats,  wharves,  or  other 
equipment. 

Sec.  2.  That  every  common  carrier  by  railroad  in  the  terri- 
tories, the  District  of  Columbia,  the  Panama  Zone,  or  other  pos- 
sessions of  the  United  States,  shall  be  liable  in  damages  to  any 
person  suffering  injury  while  he  is  employed  by  such  carrier  in 
any  of  said  jurisdictions,  or  in  case  of  the  death  of  such  em- 
ployee, to  his  or  her  personal  representatives,  for  the  benefit  of 
the  surviving  widow  or  husband  and  chidlren  of  such  employee; 
and  if  none,  then  of  such  employee's  parents;  and  if  none,  then 
of  the  next  of  kin  dependent  upon  such  employee,  for  such  in- 
jury or  death  resulting  in  whole  or  in  part  from  the  negligence 
of  any  of  the  officers,  agents  or  employees  of  such  carrier,  or  by 
reason  of  any  defect  or  insufficiency  due  to  its  negligence  in  its 

763    • 


764  Emplovkr's  Liarii^itv  Act. 

cars,  engines,  appliances,  machinery,  track,  road-bed,  works, 
boats,  wharves  or  other  ecjuipment. 

Sec.  3.  That  in  all  actions  hereafter  brought  against  any  such 
common  carrier  by  railroad  under  or  by  virtue  of  the  provisions 
of  this  act  to  recover  damages  for  personal  injury  to  an  employee, 
or  where  such  injuries  have  resulted  in  his  death,  the  fact  that 
the  employee  may  have  been  guilty  of  contributory  negligence 
shall  not  bar  a  recovery  but  the  damages  shall  be  diminished  by 
the  jury  in  proportion  to  the  amount  of  negligence  attributable 
to  such  employee:  Provided,  hoi\.'evcr,  That  no  such  employee 
who  may  be  injured  or  killed  shall  be  held  to  have  been  guilty 
of  contributory  negligence  in  any  case  where  the  violation  by 
such  common  carrier  of  any  statute  enacted  for  the  safety  of 
employees  contributed  to  the  injury  or  death  of  such  employee. 

Sec.  4.  That  in  any  action  brought  against  any  common  car- 
rier under  or  by  virtue  of  any  of  the  provisions  of  this  act  to 
recover  damages  for  injuries  to,  or  the  death  of,  any  of  its  em- 
ployees, such  employees  shall  not  be  held  to  have  assumed  the 
risk  of  his  employment  in  any  case  where  the  violation  by  such 
common  carrier  of  any  statute  enacted  for  the  safety  of  em- 
ployees contributed  to  the  injury  or  death  of  such  employee. 

Sec.  5.  That  any  contract,  rule,  regulation,  or  device  whatso- 
ever, the  purpose  and  intent  of  which  shall  be  to  enable  any 
common  carrier  to  exempt  itself  from  any  liability  created  by 
this  act.  shall  to  that  extent  be  void :  Provided,  That  in  any 
action  brought  against  any  such  common  carrier  under  or  by 
virtue  of  any  of  the  provisions  of  this  act,  such  common  carrier 
may  set  off  therein  any  sum  it  has  contributed  or  paid  to  any 
insurance,  or  relief  benefit,  or  indemnity  that  may  have  been 
paid  to  the  injured  employee,  or  the  person  entitled  thereto,  on 
account  of  the  injury  or  death  for  which  said  action  was  brought. 

"Sec.  6.  That  no  action  shall  be  maintained  under  this  act 
unless  commenced  within  two  years  from  the  day  the  cause  of 
action  accrued. 

"Under  this  act  an  action  may  be  brought  in  a  circuit  court  of 
the  United  States,  in  the  district  of  the  residence  of  the  defend- 
ant, or  in  which  the  cause  of  action  arose,  or  in  which  the  de- 
fendant shall  ibe  doing  business  at  the  time  of  commencing  such 
action.      The    jurisdiction    of    the   courts    of    the    United    States 


Employer's  Liability  Act.  765 

under  this  act  shall  be  concurrent  with  that  of  the  courts  of  the 
several  states,  and  no  case  arising  under  this  act  and  brought  in 
any  state  court  of  competent  jurisdiction  shall  be  removed  to 
any  court  of  the  United  States." 

Sec.  7.  That  the  term  "common  carrier"  as  used  in  this  act 
shall  include  the  receiver  or  receivers,  or  other  persons  or  cor- 
porations charged  with  the  duty  of  the  management  of  the  busi- 
ness of  a  common  carrier. 

Sec.  8.  That  nothing  in  this  act  shall  be  held  to  limit  the  duty 
or  liability  of  common  carriers  or  impair  the  rights  of  their  em- 
ployees under  any  other  act  or  acts  of  Congress,  or  to  affect  the 
prosecution  of  any  pending  proceeding  or  right  of  action  under 
the  act  of  Congress,  entitled  "An  act  relating  to  liability  of  com- 
mon carriers  in  the  District  of  Columbia  and  territories,  and  to 
common  carriers  engaged  in  commerce  between  the  states  and 
between  the  states  and  foreign  nations  to  their  employees,"  ap- 
proved June  11,  1906. 

"Sec.  9.  That  any  right  of  action  given  by  this  act  to  a  per- 
son suffering  injury  shall  survive  to  his  or  her  personal  repre- 
sentative, for  the  benefit  of  the  surviving  widow  or  husband  and 
children  of  such  employee,  and,  if  none,  then  of  such  employee's 
parents ;  and,  if  none,  then  of  the  next  of  kin  dependent  upon 
such  employee,  but  in  such  cases  there  shall  be  only  one  recovery 
for  the  same  injury." 

Section  6  amended  and  Section  9  added  by  Amendment  of 
1910. 


APPENDIX  L. 

[PuBuc — No.  6.] 
[s.  2517.] 

AN  ACT  providing  for  mediation,  conciliation,  and  arbitration  in  con- 
troversies between   certain  employers  and  their  employees. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  the 
provisions  of  this  act  shall  apply  to  any  common  carrier  or  car- 
riers and  their  officers,  agents,  and  employees,  except  masters 
of  vessels  and  seamen,  as  defined  in  section  forty-six  hundred 
and  twelve,  Revised  Statutes  of  the  Unied  States,  engaged  in  the 
transportatioii  of  passengers  or  property  wholly  by  railroad,  or 
partly  by  railroad  and  partly  by  water,  for  a  continuous  carriage 
or  shipment  from  one  state  or  territory  of  the  United  States  or 
the  District  of  Columbia  to  any  other  state  or  territory  of  the 
United  States  or  the  District  of  Columbia,  or  from  any  place 
in  the  United  States  to  an  adjacent  foreign  country,  or  from 
any  place  in  the  United  States  through  a  foreign  country  to  any 
other  place  in  the  United  States. 

The  term  "railroad"  as' used  in  this  act  shall  include  all  bridges 
and  ferries  used  or  operated  in  connection  with  any  railroad,  and 
also  all  the  road  in  use  by  any  corporation  operating  a  railroad, 
\\hether  owned  or  operated  under  a  contract,  agreement,  or 
lease  ;  and  the  term  "transportation"  shall  include  all  instrumen- 
talities of  shipment  or  carriage. 

The  ten-ji  "employees"  as  used  in  this  act  shall  include  all 
persons  actually  engaged  in  any  capacity  in  train  operation  or 
train  service  of  any  description,  and  notwithstanding  that  the 
cars  upon  or  in  which  they  are  employed  may  be  held  and  oper- 
ated by  the  carrier  under  lease  or  other  contract :  Provided,  hoiv- 
ever,  That  this  act  shall  not  be  held  to  apply  to  employees  of 
street  railroads  and  shall  apply  only  to  employees  engaged  in 
railroad  train  service.  In  every  such  case  the  carrier  shall  be, 
responsible  for  the  acts  and  defaults  of  such  employees  in  the 
same  manner  and  to  the  same  extent  as  if  said  cars  were  owned 
by  it  and  said  employees  directly  employed  by  it.  and  any  provi- 

766 


Arbitration  Act.     •  767 

fions  to  the  contrary  of  any  such  lease  or  other  contract  shall  be 
Innding  only  as  between  the  parties  thereto  and  shall  not  affect 
the  obligations  of  said  carrier  either  to  the  public  or  to  the  pri- 
vate parties  concerned. 

A  common  carrier  subject  to  the  provisions  of  this  act  is  here- 
inafter referred  to  as  an  "employer,"  and  the  employees  of  one 
or  more  of  such  carriers  are  hereinafter  referred  to  as  '"em- 
ployees." 

Sec.  2.  That  whenever  a  controversy  concerning  wages,  hours 
of  labor,  or  conditions  of  employment  shall  arise  between  an 
employer  or  employers  and  employees  subject  to  this  act  inter- 
rupting or  threatening  to  interrupt  the  business  of  said  employer 
or  employers  to  the  serious  detriment  of  the  public  interest,  ei- 
ther party  to  such  controversy  may  apply  to  the  Board  of  Media- 
tion and  Conciliation  created  by  this  act  and  invoke  its  services 
for  the  purpose  of  bringing  about  an  amicable  adjustment  of  the 
controversy ;  and  upon  the  request  of  either  party  the  said  board 
shall  with  all  practicable  expedition  put  itself  in  communication 
with  the  parties  to  such  controversy  and  shall  use  its  best  efforts, 
1j}-  mediation  and  conciliation,  to  bring  them  to  an  agreement ; 
and  if  such  efforts  to  bring  about  an  amicable  adjustment  through 
mediation  and  conciliation  shall  be  unsuccessful,  the  said  board 
shall  at  once  endeavor  to  induce  the  parties  to  submit  their  con- 
troversy to  arbitration  in  accordance  with  the  provisions  of  this 
act. 

In  any  case  in  which  an  interruption  of  traffic  is  imminent  and 
fraught  with  serious  detriment  to  the  public  interest,  the  Board 
of  Mediation  and  Conciliation  may,  if  in  its  judgment  such  ac- 
tion seems  desirable,  proffer  its  services  to  the  respective  parties 
to  the  controversy. 

In  any  case  in  which  a  controversy  arises  over  the  meaning  or 
tlie  application  of  any  agreement  reached  through  mediation  un- 
der the  provisions  of  this  act  either  party  to  the  said  agreement 
may  apply  to  the  Board  of  Mediation  and  Conciliation  for  an 
expression  of  opinion  from  such  board  as  to  the  meaning  or  ap- 
plication of  such  agreement  and  the  said  board  shall  upon  receii)t 
■of  such  request  give  its  opinion  as  soon  as  may  be  practicable. 

Sec.  3.  That  whenever  a  controversy  shall  arise  between  an 
employer  or  employers  and  employees  subject  to  this  act, 
which    can    not    be    settled    through    mediation    and    conciliation 


768  Arbitratiox  Act. 

ill  the  manner  provided  in  the  preceding  section,  such  con- 
troversy may  be  submitted  to  the  arbitration  of  a  board  of 
six,  or,  if  the  parties  to  the  controversy  prefer  so  to  stip- 
ulate, to  a  board  of  three  persons,  which  board  shall  be 
chosen  in  the  following  manner :  In  the  case  of  a  board 
of  three,  the  employer  or  employers  and  the  employees,  par- 
ties respectively  to  the  agreement  to  arbitrate,  shall  each  name 
one  arbitrator;  and  the  two  arbitrators  thus  chosen  shall  select 
the  third  arbitrator ;  but  in  the  event  of  their  failure  to  name  the 
third  arbitrator  within  five  days  after  their  first  meeting,  such 
third  arbitrator  shall  be  named  by  the  Board  of  Mediation  and 
Conciliation.  In  the  case  of  a  board  of  six,  the  employer  or  em- 
ployers and  the  employees,  parties  respectively  to  the  agreement 
to  arbitrate,  shall  each  name  two  arbitrators,  and  the  four  arbi- 
trators thus  chosen  shall,  by  a  majority  vote,  select  the  remaining 
two  arbitrators ;  but  in  the  event  of  their  failure  to  name  the 
two  arbitrators  within  fifteen  days  after  their  first  meeting  the 
said  two  arbitrators,  or  as  many  of  them  as  have  not  been  named, 
shall  be  named  by  the  Board  of  Mediation  and  Conciliation. 

In  the  event  that  the  employees  engaged  in  any  given  contro- 
versy are  not  members  of  a  labor  organization,  such  employees 
may  select  a  committee  which  shall  have  the  right  to  name  the 
arbitrator,  or  the  arbitrators,  who  are  to  be  named  by  the  employ- 
ees as  provided  above  in  this  section. 

Sec.  4.     That  the  agreement  to  arbitrate — 

First.     Shall  be  in  writing ; 

Second.  Shall  stipulate  that  the  arl)itration  is  had  under  the 
provisions  of  this  act. 

Third.  Shall  state  whether  the  board  of  arbitration  is  to  con- 
sist of  three  or  six  members  ; 

Fourth.  Shall  be  signed  by  duly  accredited  representatives 
of  the  employer  or  employers  and  of  the  employees ; 

Fifth.  Shall  state  specifically  the  questions  to  be  submitted  to 
the  said  board  for  decision  : 

Sixth.  Shall  stipulate  that  a  majority  of  said  board  shall  be 
competent  to  make  a  valid  and  binding  award : 

Seventh.  Shall  fix  a  period  from  the  date  of  the  appointment 
of  the  arbitrator  or  arbitrators  necessary  to  complete  the  board, 
as  provided  for  in  the  agreement,  within  which  the  said  board 
shall  commence  its  hearings ; 


ARBirRATioN  Act.  769 

Eighth.  Sliall  fix  a  period  from  the  beginning  of  the  hearings 
within  which  the  said  board  shall  make  and  file  its  award :  Pro- 
vided, That  this  period  shall  be  thirty  days  unless  a  different 
period  be  agreed  to : 

Ninth.  Shall  provide  for  the  date  from  which  the  award  shall 
become  effective  and  shall  tix  the  period  during  which  the  said 
award  shall  continue  in   force ; 

Tenth.  Shall  provide  that  the  respective  parties  to  the  award 
will  each  faithfully  execute  the  same; 

Eleventh.  Shall  provide  that  the  award  and  the  papers  and 
proceedings,  including  the  testimony  relating  thereto,  certified  un- 
der the  hands  of  the  arbitrators,  and  which  shall  have  the  force 
and  eft'ect  of  a  bill  of  exceptions,  shall  be  filed  in  the  clerk's  office 
of  the  district  court  of  the  United  States  for  the  district  wherein 
the  controversy  arises  or  the  arbitration  is  entered  into,  and 
shall  be  final  and  conclusive  upon  the  parties  to  the  agreement 
unless  set  aside  for  error  of  law  apparent  on  the  record; 

Twelfth.  May  also  provide  that  any  difference  arising  as  to 
the  meaning  or  the  application  of  the  provisions  of  an  award 
made  by  a  board  of  arbitration  shall  be  referred  back  to  the 
same  board  or  to  a  subcommittee  of  such  board  for  a  ruling, 
v.'hich  ruling  shall  have  the  same  force  and  effect  as  the  original 
award;  and  if  any  member  of  the  original  board  is  unable  or. un- 
willing to  serve  another  arl)itrator  shall  be,  named  in  the  same 
manner  as  such  original  member  was  named. 

Sec.  5.  That  for  the  purposes  of  this  act  the  arbitrators  herein 
provided  for,  or  either  of  them,  shall  have  power  to  administer 
oaths  and  affirmations,  sign  subpoenas,  require  the  attendance  and 
testimony  of  witnesses,  and  the  production  of  such  books,  papers, 
contracts,  agreements,  and  documents  material  to  a  just  deter- 
mination of  the  matters  under  investigation  as  may  be  ordered 
by  the  court;  and  may  invoke  the  aid  of  the  I'nited  States  courts 
to  compel  witnesses  to  attend  and  testif\'  and  to  produce  such 
books,  papers,  contracts,  agreements,  and  documents  to  the  same 
extent  and  under  the  same  conditions  and  ])cnaltics  as  is  pro- 
vided for  in  the  act  to  regulate  commerce,  approved  February 
fourth,  eighteen  hundred  and  eighty-seven,  and  the  amendiucnts 
thereto. 

Sec.  6.  'iMiat  everv  agreement  of  arbitration  under  (bis  act 
shall   be   at-kno\vledged    by   the   |iarties   thereto   before   a   notary 

—2;-) 


770  Akiutkatiox  Act. 

public  or  a  clerk  of  the  district  or  the  circttit  cotirt  of  appeals  of 
the  United  States,  or  before  a  member  of  the  Board  of  Media- 
tion and  Conciliation,  the  members  of  which  are  hereby  author- 
ized to  take  such  acknowledgments ;  and  when  so  acknowledged 
shall  be  delivered  to  a  member  of  said  board  or  transmitted  to 
said  board  to  be  filed  in  its  office. 

When  such  agreement  of  arbitration  has  been  filed  with  the 
said  board,  or  one  of  its  members,  and  when  the  said  board, 
or  a  member  thereof,  has  been  furnished  the  names  of  the  ar- 
bitrators chosen  by  the  respective  parties  to  the  controversy, 
the  board,  or  a  member  thereof,  shall  cause  a  notice  in  writing 
to  be  served  upon  the  said  arbitrators,  notifying  them  of  their 
appointment,  requesting  them  to  meet  promptlv  to  name  the 
remaining  arbitrator  or  arbitrators  necessary  to  complete  the 
board,  and  advising  them  of  the  period  within  which,  as  pro- 
vided in  the  agreement  of  arbitration,  they  are  empowered  to 
name  such  arbitrator  or  arbitrators. 

When  the  arbitrators  selected  by  the  respective  parties  have 
agreed  upon  the  remaining  arbitrator  or  arbitrators,  they  shall 
notify  the  Board  of  Mediation  and  Conciliation ;  and  in  the  event 
of  their  failure  to  agree  upon  any  or  upon  all  of  the  necessary 
arbitrators  within  the  period  fixed  by  this  act  they  shall,  at  the 
expiration  of  such  period,  notify  the  Board  of  Mediation  and 
Conciliation  of  the  arbitrators  selected,  if  any,  or  of  their  fail- 
ure to  make  or  to  complete  such  selection. 

If  the  parties  to  an  arbitration  desire  the  reconvening  of  a 
board  to  pass  upon  any  controversy  arising  over  the  meaning  or 
application  of  an  award  they  shall  jointly  so  notify  the  Board  of 
IMediation  and  Conciliation,  and  shall  state  in  such  written  notice 
the  question  or  questions  to  be  submitted  to  such  reconvened 
board.  The  Board  of  Mediation  and  Conciliation  shall  there- 
upon promptly  communicate  with  the  members  of  the  board  of 
arbitration  or  a  subcommittee  of  such  board  appointed  for  such 
purpose  pursuant  to  the  provisions  of  the  agreement  of  arbitra- 
tion, and  arrange  for  the  reconvening  of  said  board  or  subcom- 
mittee, and  shall  notify  the  respective  parties  to  the  controversy 
of  the  time  and  place  at  which  the  board  will  meet  for  hearings 
upon  the  matters  in  controversy  to  be  submitted  to  it. 

Sec.  7.  That  the  board  of  arbitration  shall  organize  and  se- 
lect its  own  chairman  and  make  all  necessary  rules  for  conducting 


Arbitration  Act.  771 

its  hearings  ;  but  in  its  award  or  awards  the  said  board  shall  con- 
fine itself  to  findings  or  recommendations  as  to  the  questions 
specifically  submitted  to  it  or  matters  directly  bearing  thereon. 
All  testimony  before  said  board  shall  be  given  under  oath  or  af- 
firmation, and  any  member  of  the  board  of  arbitration  shall  have 
the  power  to  administer  oaths  or  affirmations.  It  may  employ 
such  assistants  as  may  be  necessary  in  carrying  on  its  work.  It 
shall,  whenever  practicable,  be  supplied  with  suitable  quarters  in 
any  Federal  building  located  at  its  place  of  meeting  or  at  any 
place  where  the  board  may  adjourn  for  its  deliberations.  The 
board  of  arbitration  shall  furnish  a  certified  copy  of  its  awards 
to  the  respective  parties  to  the  controversy,  and  shall  transmit 
the  original,  together  with  the  papers  and  proceedings  and  a  tran- 
script of  the  testimony  taken  at  the  hearings,  certified  under  the 
hands  of  the  arbitrators,  to  the  clerk  of  the  district  court  of  the 
United  States  for  the  district  wherein  the  controversy  arose  or 
the  arbitration  is  entered  into,  to  be  filed  in  said  clerk's  office  as 
provided  in  paragraph  eleven  of  section  four  of  this  act.  And 
said  board  shall  also  furnish  a  certified  copy  of  its  award,  and  the 
papers  and  proceedings,  including  the  testimony  relating  thereto, 
to  the  Board  of  Mediation  and  Conciliation,  to  be  filed  in  its 
office. 

The  I'nited  States  Commerce  Court,  the  Interstate  Commerce 
Commission,  and  the  Bureau  of  Labor  Statistics  are  hereby  au~ 
thorized  to  turn  over  to  the  Board  of  Mediation  and  Conciliation 
upon  its  request  any  papers  and  documents  heretofore  filed  with 
them  and  bearing  upon  mediation  or  arbitration  proceedings  held 
under  the  provisions  of  the  act  approved  June  first,  eighteen  hun- 
dred and  ninety-eight,  providing  for  mediation  and  arbitration. 

Sec.  8.  That  the  aw^ard,  being  filed  in  the  clerk's  office  of  a 
district  court  of  the  United  States  as  hereinbefore  provided,  shall 
go  into  practical  operation,  and  judgment  shall  be  entered  thereon 
accordingly  at  the  expiration  of  ten  days  from  such  filing,  unless 
within  such  ten  days  either  party  shall  file  exceptions  thereto  for 
matters  of  law  apparent  upon  the  record,  in  which  case  said  award 
shall  go  into  practical  operation,  and  judgment  be  entered  ac- 
cord inglv.  when  such  exceptions  shall  have  been  finally  disposed 
of  either  bv  said  district  court  or  on  appeal  therefrom. 

.•\t  the  expiration  of  ten  days  from  the  decision  of  the  dis- 
trict court  upon  exceptions  taken  to  said  award  as  aforesaid  judg- 


772  Arbttratiox  Act. 

nient  shall  be  entered  in  accordance  with  said  decision,  unless 
during  said  ten  days  either  party  shall  appeal  therefrom  to  the 
circuit  court  of  appeals.  In  such  case  only  such  portion  of  the 
record  shall  be  transmitted  to  the  appellate  court  as  is  necessary 
to  the  proper  understanding-  and  consideration  of  the  questions  of 
law  presented  by  said  exceptions  and  to  be  decided. 

The  determination  of  said  circuit  court  of  appeals  upon  said 
({uestions  shall  be  final,  and.  being  certified  by  the  clerk  thereof 
to  said  district  court,  judgment  pursuant  thereto  shall  thereupon 
be  entered  by  said  district  court. 

If  exceptions  to  an  award  are  finally  sustained,  judgment  shall 
be  entered  setting  aside  the  award  in  whole  or  in  part ;  but  in 
such  case  the  parties  may  agree  upon  a  judgment  to  be  entered 
disposing  of  the  subject  matter  of  the  controversy,  which  judg- 
ment when  entered  shall  have  the  same  force  and  effect  as  judg- 
ment entered  j-ipon  an  award. 

Nothing  in  this  act  contained  shall  be  construed  to  require  an 
employee  to  render  personal  service  without  his  consent,  and  no 
injunction  or  other  legal  process  shall  be  issued  which  shall  com- 
pel the  performance  by  any  employee  against  his  will  of  a  con- 
tract for  personal  labor  or  service. 

Sec.  9.  That  whenever  receivers  appointed  by  a  Federal  court 
are  in  possession  and  control  of  the  business  of  employers 
covered  by  this  act  the  employees  of  such  employers  shall  have  the 
right  to  be  heard  through  their  representatives  in  such  court  upon 
all  c[uestions  afifecting  the  terms  and  conditions  of  their  employ- 
luent ;  and  no  reduction  of  wages  shall  be  made  by  such  receivers 
without  the  authority  of  the  court  therefor,  after  notice  to  such 
employees,  said  notice  to  be  given  not  less  than  twenty  days  before 
the  hearing  upon  the  receivers"  petition  or  application,  and  to  be 
posted  upon  all  customary  bulletin  boards  along  or  upon  the  rail- 
way or  in  the  customarv  places  on  the  premises  of  other  employers 
covered  by  this  act. 

Sec.  10.  That  each  member  of  the  board  of  arbitration  created 
under  the  provisions  of  this  act  shall  receive  such  compensation  as 
may  be  fixed  by  the  Board  of  ]\Iediation  and  ConciHation,  to- 
gether with  his  traveling  and  other  necessary  expenses.  The  sum 
of  $25,000,  or  so  much  thereof  as  ma\*  be  necessary,  is  hereby 
appropriated,  to  be  immediately  available  and  to  continue  avail- 
able until  the  close  of  the  fiscal  year  ending  Tune  thirtieth,  nine- 
teen  hundred  and   fourteen,   for  the  necessary   and  proper  ex- 


Arbitration  Act.  777i 

penses  incurred  in  connection  with  any  arbitration  or  with  the 
carrying  on  of  the  work  of  mediation  and  conciHation,  including 
per  diem,  traveHng,  and  other  necessary  expenses  of  members  or 
employees  of  boards  of  arbitration  and  rent  in  the  District  of 
Columbia,  furniture,  office  fixtures  and  supplies,  books,  salaries, 
traveling  expenses,  and  other  necessary  expenses  of  members  or 
employees  of  the  Board  of  Mediation  and  Conciliation,  to  be  ap- 
proved by  the  chairman  of  said  board  and  audited  by  the  proper 
accounting  officers  of  the  Treasury. 

Sec.  11.  There  shall  be  a  Commissioner  of  Mediation  and  Con- 
ciliation, who  shall  be  appointed  by  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate,  and  whose  salary  shall  be 
^7,500  per  annum,  who  shall  hold  his  office  for  a  term  of  seven 
years  and  until  a  successor  qualifies,  and  who  shall  be  removable 
by  the  President  onlv  for  misconduct  in  office.  The  President 
shall  also  designate  not  more  than  two  other  officials  of  the  Gov- 
ernment who  have  been  appointed  by  and  with  the  advice  and 
consent  of  the  Senate,  and  the  officials  thus  designated,  together 
with  the  Commissioner  of  Mediation  and  Conciliation,  shall  con- 
stitute a  board  to  be  known  as  the  United  States  Board  of  Media- 
tion and  Conciliation. 

There  shall  also  be  an  x^ssistant  Commissioner  of  Mediation  and 
Conciliation,  vi^ho  shall  be  appointed  l)y  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate,  and  whose  salary  shall  be 
$5,000  per  annum.  In  the  absence  of  the  Commissioner  of  Media- 
tion and  Conciliation,  or  when  that  office  shall  become  vacant,  the 
assistant  commissioner  shall  exercise  the  functions  and  perform 
the  duties  of  that  office.  Under  the  direction  of  the  Commissioner 
of  Mediation  and  Conciliation,  the  assistant  commissioner  shall 
assist  in  the  work  of  mediation  and  conciliation  and  when  acting 
alone  in  any  case  he  shall  have  the  right  to  take  ackowledgments, 
receive  agreements  of  arbitration,  and  cause  the  notices  in  writ- 
ing to  be  served  upon  the  arbitrators  chosen  by  ,the  respective 
parties  to  the  controversy,  as  provided  for  in  section  five  of 
this  act. 

The  act  of  June  first,  eighteen  hundred  and  ninety-eight,  re- 
lating to  the  mediation  and  arbitration  of  controversies  between 
railway  companies  and  certain  classes  of  their  employees  is  hereby 
repealed :  Provided,  That  any  agreement  of  arbitration  which,  at 
the  time  of  the  passage  of  this  act.  shall  have  been  executed  in 


774  Arbitration  xA.ct. 

accordance  with  the  provisions  of  said  act  of  June  first,  eighteen 
hundred  and  ninety-eight,  shall  be  governed  by  the  provisions  of 
said  act  of  June  first,  eighteen  hundred  and  ninety-eight,  and  the 
proceedings  thereunder  shall  be  conducted  in  accordance  with  the 
provisions  of  said  act. 
Approved,  July  15,  1913. 


APPENDIX  M 

[Public — No.  377.] 

[H.  R.  16450.] 

AN  ACT  to  punish  the  unlawful  breaking  of  seals  of  railroad  cars 
containing  interstate  or  foreign  shipments,  the  unlawful  enter- 
ing of  such  cars,  the  stealing  of  freight  and  express  packages  or 
baggage  or  articles  in  process  of  transportation  in  interstate  ship- 
ment, and  the  felonious  asportation  of  such  freight  or  express 
packages  or  baggage  or  articles  therefrom  into  another  district 
of  the  United  States,  and  the  felonious  possession  or  reception 
of  the   same. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  who- 
ever shall  unlawfully  break  the  seal  of  any  railroad  car  containing 
interstate  or  foreign  shipments  of  freight  or  express,  or  shall  en- 
ter any  such  car  with  intent,  in  either  case,  to  commit  larceny 
therein ;  or  whoever  shall  steal  or  vmlawfuUy  take,  carry  away,  or 
conceal,  or  by  fraud  or  deception  obtain  from  any  railroad  car, 
station  house,  platform,  depot,  steamboat,  vessel,  or  wharf,  with 
intent  to  convert  to  his  own  use  any  goods  or  chattels  moving  as, 
or  which  are  a  part  of  or  which  constitute,  an  interstate  or  for- 
eign shipment  of  freight  or  express,  or  shall  buy,  or  receive,  or 
have  in  his  possession  any  such  goods  or  chattels,  knowing  the 
same  to  have  been  stolen ;  or  whoever  shall  steal  or  shall  unlaw- 
fully take,  carry  away,  or  by  fraud  or  deception  obtain,  with  in- 
tend to  convert  to  his  own  use,  any  baggage  which  shall  have 
come  into  the  possession  of  any  common  carrier  for  transporta- 
tion from  one  state  or  territory  or  the  District  of  Columbia  to 
another  state  or  territory  or  the  District  of  Columbia,  or  to  a 
foreign  country,  or  from  a  foreign  country  to  any  state  or  terri- 
tory or  the  District  of  Columbia,  or  shall  break  into,  steal,  take, 
carry  away,  or  conceal  any  of  the  contents  of  such  baggage,  or 
shall  buy,  receive,  or  have  in  his  possession  any  such  baggage  or 
any  article  therefrom  of  whatsoever  nature,  knowing  the  same 
to  have  been  stolen,  shall  in  each  case  be  fined  not  more  than 
live  thousand  dollars  or  imprisoned  not  more  than  ten  years,  or 

775 


776  Breaking  Seals  of  Cars. 

botli.  and  prosecutions  therefor  may  be  instituted  in  any  district 
wherein  the  crime  shall  have  been  committed.  The  carrying  or 
transporting  of  any  such  freight,  express,  baggage,  goods,  or 
chattels  from  one  state  or  territory  or  the  District  of  Columbia 
into  another  state  or  territory  or  the  District  of  Columbia,  know- 
ing the  same  to  have  been  stolen,  shall  constitute  a  separate  of- 
fense and  subject  the  offender  to  the  penalties  above  described 
for  unlawful  taking,  and  prosecutions  therefor  may  be  instituted 
in  any  district  into  which  such  freight,  express,  baggage,  goods, 
or  chattels  shall  have  been  removed  or  into  which  they  shall  have 
been  brought  by  such  offender. 

Sec.  2.  That  nothing  in  this  act  shall  be  held  to  take  away  or 
impair  the  jurisdiction  of  the  courts  of  the  several  states  under 
the  laws  thereof;  and  a  judgment  of  conviction  or  acquittal  on 
the  merits  undfer  the  laws  of  any  state  shall  be  a  bar  to  any  prose- 
cution hereunder  for  the  same  act  or  acts. 

Approved,  February  13,  1913. 


APPENDIX  N 

Act  March  1,  1913 

AN  ACT  Divesting  intoxicating  liquors   of  their   interstate   character 
in  certain  cases. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  the 
shipment  or  transportation,  in  any  manner  or  by  any  means 
whatsoever,  of  any  spirituous,  vinous,  maUed,  "fermented,  or 
other  intoxicating  Hquor  of  any  kind,  from  one  state,  territory,  or 
District  of  the  United  States,  or  place  noncontiguous  to  but  sub- 
ject to  the  jurisdiction  thereof,  into  any  other  state,  territory,  or 
District  of  the  United  States,  or  place  noncontiguous  to  but  sub- 
ject to  the  jurisdiction  thereof,  or  from  any  foreign  country  into 
any  state,  territory,  or  District  of  the  United  States,  or  place  non- 
contiguous to  but  subject  to  the  junsdiction  thereof,  w^hich  said 
spirituous,  vinous,  malted,  fermented,  or  other  intoxicating  liq- 
uor is  intended,  by  any  person  interested  therein,  to  be  received, 
possessed,  sold,  or  in  any  manner  used,  either  in  the  original 
package  or  otherwise,  in  violation  of  any  law  of  such  state,  ter- 
ritory, or  District  of  the  United  States,  or  place  noncontiguous 
to  but  subject  to  the  jurisdiction  thereof,  is  hereby  prohibited. 
Fed.  Stat.  Ann.  1914  Supp.  208. 


777 


CoNFERENCr:  RULIXGS.  779 


EXPLANATORY  NOTE. 


That  the  conference  ruHngs  of  the  Interstate  Commerce  Com- 
mission are  important  to  shippers  and  carriers  and  are  not  al- 
ways available,  make  proper  their  insertion  here.  These  are 
copied  just  as  issued  by  the  Commission. 

The  rulings  of  the  Commission  in  conference  are  announced 
from  time  to  time  through  the  public  press  and  are  later  gath- 
ered and  issued  officially  by  the  Commission  in  the  form  of  bul- 
letins. This  is  done  for  the  information  of  shippers  and  carriers 
and  others  interested  in  transportation  matters.  They  express 
the  views  of  the  Commission  on  informal  inquiries  involving 
special  facts  or  requiring  interpretation  and  construction  of  the' 
law,  and  are  to  be  regarded  as  precedents  governing  similar  cases. 

This  bulletin  contains  all  the  rulings  in  conference  promul- 
gated by  the  Commission  since  it  adopted  the  practice  of  pub- 
lishing its  rulings,  and  takes  the  place  of  previous  bulletins.  The 
numbers  assigned  to  the  several  rulings  as  reported  in  previous 
bulletins  have  been  retained. 

It  will  be  observed  that  some  rulings,  in  the  light  of  a  wider 
knowledge  of  the  subjects  involved,  have  been  overruled  while 
others  have  been  modified  or  withdrawn.  To  avoid  confusion 
and  for  historical  and  other  more  practical  reasons,  it  has  been 
found  desirable  to  retain  all  such  rulings  in  this  bulletin  in  their 
original  form  and  under  the  numbers  previously  assigned  to 
them.  In  such  cases  the  modification  or  other  subsequent  ex- 
pression by  the  Commission  on  the  subject  matter  of  the  ruling 
is  shown  by  the  annotations. 

For  convenience  of  reference  it  is  suggested  that  conference 
rulings  be  cited  in  briefs  and  correspondence  in  this  form: 
"Conf.  Ruling  — ,"  giving  the  number  of  the  ruling,  it  being 
unnecessary  to  refer  also  to  this  bulletin  by  its  number;  where 
the  ruling  consists  of  lettered  paragraphs,  as  for  example  Rul- 
ing 78,  the  particular  paragraph  may  be  referred  to  in  this  form : 
''Conf.  Ruling  78-a." 


780  CoXFKRltXCE   RULIXGS. 

CoNi-KUKxcii  Rulings  Bulletin  Xo.  G. 

Conference  Rulings  ol  the  Interstate  ConrnierceComniission 

Issued  April  1,  1913. 


November  4,  IQOJ. 

1.  PASSES  TO  CARETAKERS.— An  employee  of  a  pro- 
duce company  was  granted  a  pass  for  the  purpose  of  going  to 
a  point  on  the  carrier's  Hnes  and  returning  as  caretaker  of  a 
carload  of  bananas.  He  was  not  able  to  secure  a  return  ship- 
ment:  Held,  That  the  carrier  must  collect  the  full  fare.  (See 
Ruling  2)7.) 

2.  TARIFFS  DISTINGUISHING  BETWEEN  SHIP- 
MENTS HANDLED  BY  STEAM  AND  ELECTRICAL 
POWER. — An  amendment  to  tariff  provided :  "The  above  rates 
will  only  apply  on  shipments  handled  by  steam  power  and  will 
not  apply  when  handled  by  electrical  power:"  Held,  That  the 
limitation  of  the  rates  to  shipments  handled  by  steam  power  is 
unlawful  and  must  be  eliminated  from  the  tariff.  (See  Ruling 
34.) 

3.  COLLECTION  OF  UNDERCHARGES.— The  Commis- 
sion adheres  to  its  previous  ruling  that  carriers  must  exhaust 
their  legal  remedies  to  collect  undercharges  from  consignees. 
(Construed  and  amended  by  Ruling  187;  superseded  by  Ruling 
314:  see  also  Rulings   16  and   156.) 


November  11,   iQoy. 

4.  RATES  ON  NE\\'  LINES.— Rule  44  of  Tariff  Circular 
No.  14 — A,  providing  that  rates  may  be  established  in  the  tirst 
instance  on  "new  lines"  without  notice,  was  intended  to  apply 
to  newly  constructed  lines  only.  (See  Rule  57,  Tariff  Circular 
18— A.) 

5.  FREE  STORAGE  CREATING  DISTRIBUTING 
POINT    FOR    PRIVATE    INDUSTRY.— Its    attention    being 


CONFURENCK    RULlNCo.  781 

called  to  a  tariff  which,  in  effect,  created  a  distributing  point 
for  a  special  industry  by  granting  it  free  storage  at  that  point, 
either  in  its  own  or  the  carrier's  warehouses,  and  practically 
without  limit  as  to  time',  the  merchandise  when  shipped  out  to 
go  on  balance  of  through  rate,  the  Commission  expressed  its 
disapproval. 

6.  RECONSIGNMENT  RULE  WILL  NOT  BE  GIVEN 
RETROACTIVE  EFFECT.— A  shipment  consigned  to  one 
point  was  reconsigned  en  route  to  another,  the  tariff'  containing 
no  reconsignmeht  privilege.  As  a  consequence  local  rates  to  and 
from  the  reconsigning  point  were  applied  and  made  higher  than 
the  through  rate :  Held,  Under  subsequent  tariff  that  did  not 
reduce  rates,  but  incorporated  a  reconsignment  privilege,  that 
the  benefit  of  such  privilege  could  not  be  applied  retroactively 
to  a  previous  shipment,  and  can  not  be  accepted  as  the  basis  for 
a  refund  on  special  reparation  docket.  (Extended  in  applica- 
tion bv  Rulings  77  and  166.) 


November  i8,  i^oj. 

7.  COMMISSIONS  ON  IMPORT  TRAFFIC— The  grant- 
ing by  carriers  of  commissions  to  persons  acting  as  consignees 
on  import  traffic  is  a  practice  that  can  not  be  sanctioned.  (See 
Ruling  221-a.) 

8.  DEMURRAGE  CHARGES  RESULTING  FROM 
STRIKES. — The  Commission  has  no  power  to  relieve  carriers 
from  the  obligations  of  tariffs  providing  for  demurrage  charges, 
on  the  ground  that  such  charges  have  been  occasioned  by  a  strike. 
("See  note  to  Ruling  242.  and  Ruling  3.S8.) 

9.  FREE  TRANSPORTATION  BY  CARRIERS  FOR 
ONE  ANOTHER. — W'here  stock  in  one  railway  company  is 
owned  by  another  railway  company,  but  both  maintain  separate 
organizations  and  report  separately  to  the  Commission,  they 
may  not  lawfully  carry  freight  free  for  each  other.  (See  Rul- 
ing 221.) 

December  2,  iqo'j . 

10.  STATUTE  OF  LIMITATIONS.- Claims  filed  with  the 
Commission    since   August  28,   1907,  must  have  accrued   within 


y't^l  Conference  Rulings. 

two  years  prior  to  the  date  when  they  are  filed,  otherwise  they 
are  barred  by  the  statute.  Claims  filed  on  or  before  August  28, 
1907,  are  not  aft'ected  by  the  two  years"  limitation  in  the  act. 
(See  Ruling  220-;.) 

11.  REDUCTION  OF  RATE  WHEN  FOR^IAL  COM- 
PLAINT AGAINST  IT  IS  PENDING.— When  after  complaint 
made  and  before  hearing  a  rate  is  reduced  to  the  sum  demanded 
by  the  complainant,  the  order  disposing  of  the  proceeding  shall 
require  the  maintenance  of  that  rate  as  a  maximum  for  not  less 
than  two  years.      (Extended  in  application  by  Ruling  14.) 

12.  TARIFF  THAT  FAILS  TO  STATE  THE  DATE  OF 
ITS  EFFECTIA'ENESS  IS  UNLAWFUL.— A  tariff  was  filed 
without  naming  a  date  on  which  it  was  to  take  effect.  Does  it 
ever  become  effective,  and  if  so,  when?  Held,  That  the  tariff 
was  unlawful  and  has  never  taken  effect.  (See  Rulings  7Z  and 
100.) 

13.  TARIFFS  NOT  CONCURRED  IN  ARE  UNLAW- 
FUL.— A  properly  accredited  chairman  of  a  tariff  committee 
published  tariffs  for  certain  carriers  for  which  he  was  the  duly 
constituted  attorney-in-fact  for  that  purpose.  A  carrier  declin- 
ing to  concur  in  his  tariff's  put  a  new  cover  on  them  and  filed 
them  as  its  own  tariffs  without  securing  the  concurrences  of  the 
other  carriers  named  therein :  Held,  That  the  tariffs  so  adopted 
were  unlawful  and  could  not  be  used  by  the  carrier. 

January  6,   IQ08. 

14.  MAINTENANCE  OF  RATE  REDUCED  AFTER 
COMPLAINT  FILED.— On  December  2,  1907,  it  was  decided 
that  when  a  rate  is  reduced  after  answer  has  been  made  and 
before  hearing,  the  report  disposing  of  the  proceeding  shall  carry 
with  it  an  order  directing  the  defendant  to  maintain  that  rate 
as  a  maximum  for  not  less  than  two  years.  On  December  6  it 
w^as  decided  that  orders  in  special  reparation  cases  shall  include 
a  clause  providing  that  the  new  rate  or  regulation  upon  the  Jjasis 
of  which  reparation  is  granted  shall  be  maintained  for  a  period 
of  at  least  one  year.     ('See  Ruling  11.) 

It  is  now  agreed  that  the  two  years  so  required  in  orders  upon 
formal  complaints  and  the  one  year  in  orders  in  special  repara- 


Confkkexcf;  Rulings.  783 

tion  cases  shall  run  from  the  date  of  the  order  and  not  from 
the  date  when  the  reduced  rate  or  new  regulation  became  effect- 
ive.    (See  Rulings  130,  200-a.  and  220-c.) 

15.  DELIVERING  CARRIER  MUST  INVESTIGATE 
BEFORE  PAYING  CLAIMS.— A  delivering  carrier  can  not  ac- 
cept the  authority  of  a  connecting  line,  and  thus  shield  itself 
from  responsibility  in  paying  claims,  but  must  investigate  and 
ascertain  the  lawful  rates  and  allow  the  claims  or  not  upon  the 
basis  of  its  own  investigations.  (Reafifirmed  by  Rulings  68  and 
236.) 

16.  DELIVERING  CARRIER  ^lUST  COLLECT  UNDER- 
CHARGES.— Even  though  an  undercharge  results  from  an  er- 
ror in  billing  by  the  initial  carrier  or  a  connection,  the  delivering 
carrier  must  collect  the  undercharge.  The  legal  expense  attend- 
ing its  efforts  to  collect  undercharges  in  such  cases  would 
seem  to  be  a  valid  claim  against  the  carrier  through  whose  fault 
the  mistake  was  made.  (Reafifirmed  by  Ruling  156;  see  also 
Rulings  187  and  314.) 

17.  FEEDING  AND  GRAZING  IN  TRANSIT.— In  connec- 
tion with  the  published  privilege  of  feeding  and  grazing  in  transit 
a  carrier  may  lawfully  provide  in  its  tariffs  that  it  will  furnish 
feed  at  current  market  prices,  and  bill  the  cost  thereof,  together 
with  an  addition  of  10  per  cent  or  other  reasonable  percentage 
to  cover  the  value  of  its  services,  as  advance  charges. 

18.  FREE  TRANSPORTATION  OF  DEAD  BODY  OF 
EMPLOYEE. — When  an  employee  of  a  carrier  has  been  killed 
or  has  died  in  service  at  a  distant  point,  the  carrier  may,  free  of 
charge  and  as  a  general  incident  to  the  relation  between  it  and 
its  employees,  lawfully  transport  the  body  to  the  home  of  the 
deceased  for  burial.     (See  Rulings  173  and  193.) 

NnTC. — Under  the  amendatory  act  nf  April  1.S,  190S,  it  is  lawful  for 
a  carrier  to  give  free  transportation  to  the  remains  of  a  person  killed 
in  its  employ,  and  also  to  his  family. 

19.  EXPENSES  TNCl^RRED  IN  PREPARING  CARS 
FOR  SHIPMENTS  CAN  NOT  BE  PAID  BY  CARRIER  IN 
THE  ABSENCE  OF  TARIFF  PROVISION  THEREFOR.— 
Not  having  box  cars  available  for  the  movement  of  machinery, 
cattle  cars  were  supplied  at  the  request  of  the  shipper,  who  lined 


784  CONFKRKNCK   RuLIXGS. 

them  with  tar  paper  and  feU  in  order  to  protect  his  shipments 
from  weather  conditions :  Held,  That  in  the  absence  of  tariflf 
authority  the  carrier  can  not  lawfully  reimburse  the  shipper  for 
the  expense  so  incurred.     (See  Rulings  78,  132,  292,  and  360.) 

20.  SPECIAL  UNDERSTANDINGS  BETWEEN  SHIP- 
PERS AND  CARRIERS.  NOT  PUBLISHED  IN  THEIR 
TARIFFS,  OF  NO  VALID  EFFECT.— A  shipper  had  an  under- 
standing with  agents  of  carriers  that  when  he  delivered  shipments 
to  them  consigned  to  stations  at  which  there  were  no  agents  the 
carriers  would  so  advise  him  and  hold  the  shipments  for  fur- 
ther direction.  In  a  given  case  a  carrier  neglected  to  so  advise 
him  and  to  hold  the  shipment,  but  billed  it  and  sent  it  forward 
to  a  nonagency  station  as  a  prepaid  shipment:  Held,  That  the 
shipper  must  pay  the  charges,  and  that  no  understanding  of  that 
nature,  not  incorporated  in  the  published  tariffs  of  the  carrier, 
will  operate  to  relieve  the  carrier  from  the  duty  of  collecting  the 
lawful  charges.      (See  Ruling  235.) 

21.  CARETAKERS  OF  MILK.— The  provision  of  law  relat- 
ing to  the  free  transportation  of  necessary  caretakers  of  live- 
stock, poultry,  and  fruit  can  not  be  construed  to  include  care- 
takers of  shipments  of  milk. 

Note. — Under  the  amendatory  act  of  June  18,  1910,  free  transporta- 
tion may  be  accorded  to  caretakers  of  milk. 

22.  FREE  CARRIAGE  OF  COMPANY  MATERIAL.— It 
is  not  unlawful  for  a  carrier  to  return  its  own  property  free  of 
charges,  to  the  manufacturers  thereof  situated  on  its  own  line, 
for  exchange  or  repair. 

23.  EXTENSION  OF  TIME  ON  THROUGH  PASSEN- 
GER TICKETS. — A  through  rate  must  be  recognized  as  a  unit, 
and  an  extension  of  time  granted  on  a  through  ticket  under  a 
tariff  regulation  of  a  carrier  whose  line  is  a  part  of  that  route 
is  sufficient  to  cover  the  transportation  over  the  lines  of  other 
carriers  in  the  route.  The  proper  practice  is  for  the  carrier  so 
granting  the  extension  to  indorse  it  upon  the  portion  of  the 
ticket  to  be  taken  up  by  the  last  carrier,  and  also  upon  the 
coupon  of  each  carrier.  (Overruled  by  the  Commission  on 
March  2,  1908,  see  Ruling  43.) 


Conference  Rulings.  785 

24.  CANADIAN  FARES.— A  Canadian  carrier  having  joint 
through  fares  from  a  point  in  the  United  States  to  points  on 
its  own  line  may  not  depart  from  those  fares  by  the  device  of 
placing  an  agent  at  such  point  in  the  United  States  with  au- 
thority to  sell  tickets  from  the  first  station  on  its  line  north  of 
the  Canadian  boundary  to  other  points  on  its  line  in  Canada  at 
the  rate  of  1  cent  a  mile,  "to  be  sold  only  to  such  persons  as 
produce  a  certificate  of  the  immigration  agent  of  the  Canadian 
government."  Besides  being  a  device,  tickets  so  limited  to  par- 
ticular persons  operate  as  a  discrimination.  But  in  the  absence 
of  such  joint  through  fares  from  a  point  in  the  United  States 
to  points  on  its  own  lines  this  Commission  has  no  jurisdiction 
over  the  fares  actually  charged  and  collected  for  the  separate 
transportation  between  points  in  Canada.      (See  Ruling  98.) 

25.  REFUND  OF  DRAY  AGE  CHARGES  CAUSED  BY 
MISROUTING. — Where  a  shipment  was  routed  contrary  to 
the  express  directions  of  the  shipper  and  the  consignee  was 
compelled  to  move  the  shipment  by  dray  from  the  station  of 
delivering  carrier  to  the  destination  to  which  it  would  have 
been  switched  if  properly  routed,  the  carrier  may,  under  the 
particular  circumstances  of  the  case,  be  authorized  by  the  Com- 
mission to  refund  to  the  shipper  the  reasonable  actual  cost  of 
the  drayage.      (Overruled  by  Rulings  234,  283,  and   286-rf.) 

26.  USE  OF  INTRASTATE  COMMUTATION  TICKET 
IN  INTERSTATE  JOURNEY.— In  the  absence  of  a  provision 
in  the  commutation  contract  "forbidding  it,  a  commutation  ticket 
may  be  used  between  the  points  named  on  it  in  connection  with 
an  interstate  journey  on  trains  that  stop  at  such  points. 


January  /?,  i()o8. 

27.  EXCURSION  TICKET  INVALIDATED  THROUGH 
FAILURE  OF  CARRIER  TO  MAKE  CONNECTION.— A 
passenger  traveling  on  a  special  limited  excursion  ticket  with 
stop-over  privilege,  leaves  a  stop-over  point  in  ample  time  to 
make  all  connections  and  meet  conditions  of  ticket;  but  through 
successive  delays  to  trains  misses  connections  at  a  certain  junc- 
tion, making  the  ticket  twenty-four  hours  out  of  date.  Regu- 
lar fare  was  collected  for  the  balance  of  the  return  trip :    Held. 


786  Conference;  Rulings. 

That  the  carriers  ought  to  make  the  ticket  good,  it  having  be- 
come invahd  tlirough  their   fault. 

28.  TICKETS  FOR  TRANSPORTATION  AND  MEALS, 
HOTEL  ACCOMMODATIONS,  ETC.— A  carrier  pubhshes  a 
tariff  offering  certain  transportation  fares  and  fates  for  per- 
sonally conducted  tours  with  tickets  to  cover  meals,  hotel  ac- 
commodations, etc.,  and  declines  to  sell  the  transportation  ticket 
to  anyone  who  does  not  also  purchase  the  ticket  covering  meals 
and  hotel  accommodations :  Held,  That  the  two  matters  must 
be  kept  separate,  and  carriers  may  not  decline  to  sell  such  trans- 
portation without  tickets  for  meals  and  hotel  accommodations. 

29.  QUOTATIONS  FROM  CORRESPONDENCE  OF 
THE  COMMISSION.— The  Commission  requests  that  if  ex- 
tracts from  its  correspondence  are  sent  out  by  carriers,  such 
extracts  be  made  sufficiently  full,  or  that  sufficient  of  the  cor- 
respondence be  presented,  to  give  a  complete  view  and  under- 
standing of  the  meaning  of  the  ruling  and  of  the  circumstances 
discussed,  or  of  the  inquiry  answered  therein. 

January   15,   iQoS. 

30.  CARRIERS'  MONTHLY  REPORTS  TO  BE  FUR- 
NISHED IN  DUPLICATE.— Beginning  as  of  January  1.  1908. 
monthly  reports  of  revenues  and  expenses,  as  provided  for  in 
the  order  of  the  Commission,  bearing  date  July  10,  1907.  shall 
be  filed  in  duplicate,  and  on  or  before  the  last  day  of  the  month 
immediately  following  the  month  covered  by  the  report  shall 
be  deposited  in  the  L"^nited  States  Post-Office,  postage  prepaid, 
and  plainly  addressed  to  the  Bureau  of  Statistics  and  Accounts, 
Interstate  Commerce  Commission,  Washington,  D.  C. 

31.  DEMURRAGE  CHARGES  ON  ASTRAY  SHIP- 
MENTS.— An  astray  shipment  of  perishable  merchandise  was 
not  rebilled  to  its  proper  destination,  but  was  sold  by  the  con- 
signee at  the  point  where  he  found  it.  The  delivering  carrier  at 
that  point  had  assessed  demurrage  charges  before  the  shippers 
were  able  to  locate  the  car.  That  carrier  expressed  its  willing- 
ness to  waive  the  demurrage  if  the  Commission  permits:  Held. 
That  demurrage  charges  stand  in  the  same  light  as  transporta- 


Conference  Rulings.  787 

tion    charges   and   may   be    adjusted   under   Ruling   217    of   this 
Bulletin,  formerly  published  as  Rule  74  of  Tariff  Circular  15~A. 


February  ^,    igo8. 

32.  DEMURRAGE  CHARGES.— The  delivering  carrier  is 
under  obligation  to  collect  demurrage  charges  assessed  by  it, 
although  such  charges  may  have  accrued  as  the  result  of  er- 
ror on  the  part  of  another  carrier.  (See  Ruling  220-/;  see  also 
note  to  Ruling  242. ) 

The  shipper  should  pay  the  lawfully  published  rate  via  the 
route  over  which  the  shipment  moved,  pending  dispute,  and  then 
make  claim  for  refund.  The  Commission,  in  the  adjustment  of 
misrouting  claims,  will  not  ordinarily  include  demurrage  charges. 
(See  Ruling  220-^.) 

When  the  delivering  carrier  demands  more  than  the  lawful 
rate,  the  consignee  is  released  from  the  obligation  to  pay  de- 
murrage charges  accruing  during  the  pendency  of  the  dispute 
as  to  the  lawful  rate. 

33.  REDUCED  RATE  TRANSPORTATION  FOR  FED- 
ERAL, STATE,  AND  MUNICIPAL  GOVERNMENTS.-^ 
Under  section  22  of  the  act  to  regulate  commerce,  carriers  may 
grant  reduced  rates  for  the  transportation  of  property  for  the 
United  States  or  for  state  or  municipal  governments,  under  ar- 
rangements made  directly  with  such  government  and  in  which 
no  contractor  or  other  third  person  intervenes,  without  filing 
or  posting  the  schedule  of  such  rates  with  the  Commission.  (See 
Rulings  36,  65,  208-^.  218,  244.  and  311.) 

34.  COAL  USED  FOR  STEAM  PURPOSES  NOT  EN- 
TITLED TO  REDUCED  RATES.— A  tariff  providing  for  re- 
duced rates  on  coal  used  for  steam  purposes,  or  that  the  carrier 
will  refund  part  of  the  regular  tariff  charges  on  presentation 
of  evidence  that  the  coal  was  so  used,  is  improper  and  unlaw- 
ful. That  is  to  say,  the  carrier  has  no  right  to  attempt  to  dic- 
tate the  uses  to  which  commodities  transported  by  it  shall  be 
put  in  order  to  enjov  a  transportation  rate.     (See  Ruling  2.) 

35.  l^SE  OF  STATE  PASSES  IN  INTERSTATE  JOUR- 
NEYS UNLAWFUL. — Passes  granted  to  state  railroad  com- 
missioners can  not  lawfully  be  used  in  interstate  journeys. 


788  CoxFERExcE  Rulings. 

February  4,  ipo8. 

36.  RATES  OX  SHIPMEXTS  FOR  THE  FEDERAL 
GO\'ERXMEXT. — If  title  to  property,  such  as  postal  cards, 
passes  to  the  Government  at  the  point  of  manufacture,  the  car- 
rier may  agree  upon  a  rate  to  be  applied  for  transporting  it  for 
the  Government  to  another  point,  without  filing  a  tariff  with 
the  Commission.  But  if  the  manufacturer  under  his  contract 
is  required  to  deliver  to  the  Government  at  such  other  point, 
the  transportation  must  be  under  the  published  tarifif  rate.  In 
other  words,  if  the  shipment  is  made  directly  by  the  Govern- 
ment, this  rate  may  be  fixed  by  the  carrier  without  posting  and 
filing  the  tariff,  but  not  otherwise.  (See  Ruling  33,  and  Ruling 
244  rescinding  Ruling  65.) 

37.  PASSES  TO  CARETAKERS.— Passes  to  caretakers 
must  be  in'  the  form  of  trip  passes  limited  to  the  journey  on 
which  the  person  to  whom  the  pass  runs  acts  as  a  caretaker.  It 
may  also  cover  the  return  journey.  Annual  or  time  passes  to 
caretakers  are  unlawful.     (See  Ruling  1.) 

38.  REPARATIOX  OX  IXFORAIAL  COMPLAIXTS.— 
The  phrase  "within  a  reasonable  time,"  on  page  2  of  Special 
Circular  Xo.  1,  relating  to  "Special  reparation  on  informal  com- 
plaints," is  now  defined  as  a  period  of  time  not  exceeding  six 
months.  And  reparation  will  not  be  authorized  by  the  Commis- 
sion, except  in  cases  involving  special  circumstances,  unless  the 
rate  upon  the  basis  of  which  adjustment  is  sought  has  been  ac- 
tually established  by  published  tariff's  within  six  months  after  the 
date  of  the  shipment  in  question,  or  unless  the  claim  is  filed 
with  the  Commission  within  six  months  after  the  shipment 
moved.  (Special  Circular  Xo.  1.  as  subsequently  amended,  ap- 
pears as  Ruling  220  of  this  bulletin.) 


March  ?,  1908, 

39.  ACCRUED  DEMURRAGE  CHARGES.— A  shipper 
who  had  customarily  paid  his  freight  charges  in  checks  was 
called  upon,  under  a  general  order  issued  by  the  carrier,  to  pay 
his  freight  charges  in  cash  during  the  recent  financial  disturb- 
ances. \\'hile  the  local  agent  was  endeavoring  to  get  authority 
from  the  home  office  of  the  carrier  to  continue  to  accept  checks 
from  this  shipper  demurrage  charges  accrued ;  Held,  That  they 
could  not  lawfully  be  refunded.     (See  note  to  Ruling  242.) 


Conference:  Rulings.  789 

40.  PRINTING  OF  BRIEFS.— Rule  NIV  of  the  Rules  of 
Practice  is  amended  by  the  following  paragraph,  to  be  inserted 
between  the  hrst  and  second  paragraphs  as  they  now  stand: 

"Briefs  shall  be  printed  in  twelve-point  type,  on  antique  finish 
paper  5?-^  inches  wide  by  9  inches  long,  with  suitable  margins, 
double-leaded  text  and  single-leaded  citations."  (Same  as  Rul- 
ing 149-&.) 

41.  DIVISION  OF  PROCEEDS  OF  SALE  OF  SHIP- 
MENT TO  PAY  FREIGHT  CHARGES.— A  shipment  refused 
by  the  consignee  and  upon  which  demurrage  had  accrued  was 
sold  by  the  delivering  carrier,  but  did  not  realize  the  amount 
of  the  transportation  charges  and  the  amount  paid  for  unload- 
ing. Upon  the  request  of  the  carrier  the  Commission  declined 
to  express  its  views  as  to  the  manner  in  which  the  proceeds  of 
the  sale  should  be  divided  among  the  several  carriers  participat- 
ing in  the  movement,  that  being  a  matter  to  be  determined  by 
the  interested  carriers  for  themselves.     (See  Ruling  145.) 

42.  RATES  ON  RETURN  MOVEMENTS.— A  shipment 
of  mining  machinery  went  to  destination  over  the  lines  of  one 
carrier  and  was  subsequently  returned  for  repairs  over  the  lines 
of  another  carrier.  The  published  tariff,  to  which  all  carriers 
participating  in  both  movements  were  parties,  provided  for  half 
rates  on  such  return  movements  when  over  the  same  route  as 
the  original  out-bound  movement.  A  portion  of  the  route  of  the 
return  movement  was  over  the  line  of  a  carrier  which  also  formed 
a  part  of  the  through  route  over  which  the  out-bound  shipment 
moved :  Held,  That  the  regular  tariff  rate  was  properly  applied 
on  the  return  movement ;  that  the  return  movement  under  through 
billing  must  be  treated  as  a  unit ;  and  that  there  could  be  no  re- 
fund on  the  basis  of  the  half  rates  for  any  portion  of  such 
through  return  movement. 

43.  EXTENSION  OF  TIME  ON  THROUGH  PASSEN- 
GER TICKETS. — The  ruling  heretofore  announcerl  imder  this 
head  to  the  effect  that  an  extension  of  time  on  a  through  ticket 
by  a  carrier  whose  line  is  a  part  of  that  route  is  binding  on  the 
lines  of  other  carriers  in  the  route,  is  now  withdrawn.  (See 
Ruling  23.) 

44.  LIMITATIONS  OF  PASSENGER  TICKETS.— A  pas- 
senger traveling  on  a  round-trip  ticket  containing  the  provision 


790  Conference  Rulings. 

that  "This  ticket  will  be  good  for  return  trip  to  starting  point 
prior  to  midnight  of  date  punched  by  selling  agent  in  column  2. 
Final  limit;"  did  not  reach  the  last  connecting  carrier  before 
the  date  punched  on  the  ticket.  The  passenger  was  required  to 
pay  full  fare  on  the  last  connecting  line :  Held,  That  a  refund 
could  not  lawfully  be  made. 

45.  PASSENGERS  ON  FREIGHT  TRAINS.— Upon  in- 
quiry made  by  a  carrier  the  Commission  holds  that  it  may  not 
confine  the  right  to  travel  on  freight  .trains  to  a  particular  class, 
such  as  drummers  and  commercial  agents,  but  if  the  privilege 
is  permitted  to  one  class  of  travelers  it  must  be  open  to  all  others 
on  equal  terms  and  conditions. 

46.  REPARATION  ON  INFORMAL  PLEADINGS- 
PASSENGER  TICKETS.— The  rulings  of  the  Commission  re- 
lating to  reparation  on  informal  complaints  do  not  extend  to  pas- 
senger traffic,  but  are  limited  to  freight  traffic  only.  The  Com- 
mission will  not  entertain  applications  for  authority  to  refund 
on  passenger  tickets  on  the  ground  that  the  fare  w^as  reduced 
shortly  after  the  ticket  was  sold.  (But  see  Rulings  113.  247, 
266,  277,  and  385.) 


March  g,  iqo8. 

47.  TARIFF  TAKING  EFFECT  ON  SUNDAY.— Under  a 
tariff  schedule  regularly  filed,  showing  a  change  in  published 
rates,  it  happened  that  the  thirty  days'  notice  required  by  law 
expired  on  Sunday:  Held,  That  the  tariflF  is  lawful. 


March  lo,  iqo8. 

48.  MAY  A  SHIPPER  OFFSET  A  CLAIM  AGAINST  A 
CARRIER  BY  DEDUCTING  FROM  FREIGHT  CHARGES 
ON  SHIPMENT? — A  shipper  having  a  money  demand  against 
an  interstate  carrier  sought  to  offset  it  against  the  amount  of  a 
freight  bill  which  he  owed  the  carrier  upon  a  shipment  of  mer- 
chandise. May  this  lawfully  be  done?  Held,  That  the  two  trans- 
actions have  no  relation  one  to  the  other,  and  that  such  a  de- 
duction from  the  lawful  charges  on  the  shipment  could  not  be 
made.    Superseded  by  Ruling  323.     (Compare  Ruling  133.) 


Conference  Rulings.  791 

49.  BENEFIT  OF  REPARATION  ORDERS  ENTENDS 
TO  ALL  LIKE  SHIP]\IENTS. — No  carrier  may  pay  any  re- 
fund from  its  published  tariff  charges  save  with  the  specific  au- 
thority of  the  Commission.  When  an  informal  or  formal  repara- 
tion order  has  been  made  by  the  Commission,  the  principle  upon 
which  it  is  based  extends  to  all  like  shipments,  but  no  refunds 
may  be  made  by  the  carrier  upon  such  like  shipments  except  upon 
specific  authority  from  the  Commission  therefor.  (See  Rulings 
200-c  and  220-d'.) 

50.  WHEN  JOII^^T  AGENT  PUBLISHES  A  NEW^  RATE 
BETW^EEN  TW^O  POINTS,  WITHOUT  CANCELING  THE 
OLD-RATE  DULY  PUBLISHED  BY  ONE  OF  THE  CAR- 
RIERS. THE  OLD  RATE  ON  THAT  LINE  REMAINS  IN 
EFFECT. — The  published  tariffs  of  an  interstate  carrier  named 
a  rate  of  20  cents  on  a  given  commodity  between  specified  points. 
On  October  1,  1907,  under  a  proper  power  of  attorney,  a  joint 
agent  of  all  carriers  serving  those  two  points  published  a  rate  of 
22  cents.  He  failed  to  cancel  the  20-cent  rate  and  it  was  not 
formally  canceled  by  the  carrier  that  published  it  until  January 
14,  1908:  Held,  That  because  of  the  failure  of  the  joint  agent  and 
of  the  carrier  that  published  it  to  cancel  that  rate  in  the  manner 
required  by  section  6  of  the  act.  and  rule  8  of  Tariff  Circular 
14 — A.  the  20-cent  rate  remained  the  lawful  rate  of  that  carrier 
until  formally  canceled  on  January  14,  1908.  (See  Ruling  104. 
Rule  8  of  Tariff'  Circular  14 — A  is  now  published  as  Rule  8  of 
Tariff  Circular  18— A.) 


}farcJi  II,  ipo8. 

51.  THE  USE  OF  PULLMAN  CARS  AT  STOP-OVER 
POINTS  CAN  NOT  BE  LIMITED  TO  MEMBERS  OF  A 
PARTICL^LAR  CLUB. — A  carrier  desiring  to  make  excursion 
rates  to  a  point  where  a  convention  is  to  be  held  wishes  to  ac- 
cord to  members  of  certain  clubs  the  privilege  of  occupying  the 
sleeping  cars  while  the  convention  is  in  session :  Held,  That 
the  carrier  may  lawfully  arrange  an  excursion  rate  to  such  point 
and  return,  the  rate  to  include  sleeping-car  accommodations  to 
and  from  that  point  with  the  privilege  of  occupying  the  car  at 
that  point  during  the  convention  ;  but  that  the  Commission  does 
not  understand  that  the  carrier  may  limit  the  privilege  to  the 
members  of  any  particular  clul).  > 


792  Conference  Rulings. 

52.  RATE  EASTBOUND  CAN  NOT  BE  APPLIED 
WESTBOUND  UNLESS  SO  PUBLISHED.— A  mixed  car- 
load of  meat  eastbound  was  diverted  at  the  Ohio  River  on  ac- 
count of  a  flood,  and,  by  order  of  the  shipper,  was  taken  by  a 
roundabout  route  to  a  point  east  of  its  destination  and  was  thence 
hauled  westbound  to  destination.  The  mixed-carload  rate  ap- 
plied on  eastbound  shipments,  but  the  tariffs  provided  no  mixed- 
carload  rate  on  westbound  shipments :  Held,  That  such  inter- 
ruption of  the  eastbound  movement  would  not  justify  the  appli- 
cation of  a  mixed-carload  rate  on  the  westbound  movement  to 
destination.  ' 

53.  TRANSIT  PRIVILEGE  NOT  AVAILED  OF  CAN 
NOT  BE  RENEWED  AFTER  THE  EXPIRATION  OF  THE 
TIME  ALLOWED  IN  THE  TARIFFS.— A  consignor  of  sheep, 
which  were  being  grazed  in  transit,  was  unable  because  of  a 
severe  snowstorm  to  get  the  sheep  to  the  station  before  the 
grazing  privilege  expired  according  to  the  published  time  limit. 
Upon  inquiry  of  the  carrier  it  was  held  that  it  can  not  lawfully 
take  the  sheep  forward  on  the  rates  which  would  have  been 
applicable  under  the  tarifif  had  the  sheep  been  shipped  within  the 
time  limit. 


March  i6,  1908. 

54.  DEMURRAGE  OF  INTERSTATE  SHIPMENTS.— 
Questions  of  demurrage  and  car  service  on  interstate  shipments 
are  within  the  jurisdiction  of  the  Interstate  Commerce  Com- 
mission, which  does  not  concur  in  the  view  suggested  by  certain 
state  commissions  that  such  matters,  even  when  pertaining  to  in- 
terstate shipments,  are  within  their  control.  (Reaffirmed  by 
Ruling  223-&.) 

55.  FREE  PASS  TO  RAILWAY  EMPLOYEE  ON 
LEAVE  OF  ABSENCE. — An  employee  who  has  not  been  sus- 
pended or  dismissed  from  the  service,  but  is  on  leave  of  ab- 
sence and  is  still  carried  on  the  roll  of  employees  of  the  carrier, 
is  still  an  employee  and  as  such  may  lawfully  use  free  trans- 
portation. 

Note. — This  ruling:  was  made  by  the  Commission  on  March  16, 
1908;  by  the  amendatory  act  of  April  13,  1908,  carriers  were  given 
the  rig^ht  to  give  free  transportation  to  ''furloughed,  pensioned,  and 
superannuated  employees." 


COXFERENCE  RULIXGS.  793 

.iMil  Y,   IQ08. 

56.  HOURS-OF-SERMCE  LAW —STREET-CAR  COM- 
PANIES.— Upon  inquiry  whether  the  hours-of-service  law  ap- 
plies to  electric  street  car  lines  which  are  interstate  carriers: 
Held,  That  it  applies  to  all  railroads  subject  to  the  provisions  of 
the  act  to  regulate  commerce,  as  amended,  including  street  rail- 
roads when  engaged  in  interstate  commerce.     (See  Ruling  287.) 

57.  RESHIPPING  RATE  FROM  PRIMARY  GRAIN 
MARKETS. — May  a  carrier  lawfully  cancel  its  local,  reconsign- 
ing,  proportional,  and  other  rates,  on  outbound  shipments  of 
grain  from  a  primary  market  like  Kansas  City,  where  no  grain 
originates  upon  which  the  local  rate  would  be  applicable,  and 
substitute  for  them  a  reshipping  rate  applicable  on  all  outbound 
grain  ? 

Responding  to  the  inquiry  the  Commission  approved  the  sug- 
gestion, but  declines  in  advance  to  express  approval  of  such 
reshipping  rate  when  it  makes  less  than  the  published  rate  from 
an  intermediate  point. 

58.  DECLARING  A  FALSE  VALUATION  IN  VIOLA- 
TION OF  SECTION  10. — Upon  an  inquiry  from  a  banking 
house  whether  it  may  lawfully  declare  a  value  of  $5,000  upon 
a  package  of  negotiable  bonds  of  the  market  value  of  $10,000 
and  pay  the  express  charges  on  the  basis  of  the  declared  value, 
upon  the  understanding  that  in  case  of  the  loss  of  the  bonds  the 
express  company  will  be  responsible  only  for  the  amount  so  de- 
clared, it  was  held  that  a  shipper  falsely  declaring  the  value  of 
a  package  delivered  to  an  express  company  for  transportation 
violates  section  10  of  the  act.     (See  Ruling  295.) 

59.  CARRIERS  MUST  SEND  CAR  THROUGH  OR 
TRANSFER  SHIPMENT  EN  ROUTE.— Where  connecting 
lines  have  united  in  publishing  a  joint  through  rate  between  two 
points  it  is  the  sense  of  the  Commission  that  it  is  the  duty  of  the 
carriers  in  the  route  to  provide  the  car  and  permit  it  to  go 
through  to  destination  or  to  transfer  the  property  en  route  to 
another  car  at  their  own  exjiense.     (Afifirmcfl  in  Ruling  339.) 

60.  NO  REFUND  TO  PASSENGER  WHO  EXCEEDED 
STOPOVER  LIMIT. — A  passenger,  while  availing  himself  of  a 

stopover  pri\ilege  at   a   certain   jjoint   in   his   journey,   was   sub- 


794  CoxFKRExcE  Rulings. 

prenaed  as  a  witness  in  a  proceeding  in  a  civil  court,  and  obey- 
ing the  process  was  not  able  to  proceed  on  his  journey  within  the 
time  limit  of  the  stopover.  As  a  result  he  was  compelled  to 
pay  an  additional  fare  from  that  point  to  destination :  Held, 
That  a  refund  could  not  lawfully  be  made. 

61.  STORAGE  CHARGES  ON  TRUNK  ACCRUING  BE- 
CAUSE OF  INJURY  TO  PASSENGER.— The  Pullman  car  in 
which  a  passenger  was  traveling  was  derailed  and  went  over  an 
embankment,  resulting  in  an  injury  to  a  passenger,  who  in  conse- 
quence w^as  detained  for  some  time.  His  trunk  was  taken  on  to 
destination  and  storage  charges  accrued  on  it  until  claimed  by 
him :   Held,  That  the  storage  charges  might  lawfully  be  refunded. 


April  14,  1Q08. 

62.  BOATS  THAT  ARE  NOT  COMMON  CARRIERS.— 
Certain  carriers  have  been  in  the  habit  of  advancing  the  charges 
of  sailing  vessels,  boats,  and  barges  bringing  vegetables  to  their 
terminals  to  be  forwarded  to  interstate  destinations,  and  of  en- 
tering the  amount  on  waybills  as  charges  in  addition  to  their 
tariff  rates.  Upon  inquiry  whether  the  carriers  may  lawfully 
continue  this  practice  it  was  held  that  if  the  boats  are  common 
carriers,  making  regular  trips  and  ofifering  their  services  to  the 
general  public,  they  must  file  tariffs  and  the  practice  must  be 
discontinued  until  they  do  so. 

63.  SERVANTS  MAY  NOT  USE  FREE  PASSES.— The 
word  family,  as  used  in  the  antipass  provision  of  the  act,  does 
not  include  servants.     (Amended  by  Rulings  02  and  95-r.) 

64.  ABSORPTION  OF  SWITCHING  CHARGES.— The 
tariff  of  a  carrier  provided  for  the  absorption,  of  switching 
charges.  Upon  inquiry  it  was  agreed  that  the  Commission  could 
not  sanction  a  practice  under  which  switching  charges  are  paid 
by  the  consignee,  the  carrier  deducting  the  amount  of  the  switch- 
ing charges  from  the  published  rates  and  collecting  the  balance 
from  the  consignee.  In  all  cases  the  carrier  must  collect  the  full 
tariff  rates.  Where  its  tariffs  provide  for  absorptions  of  switch- 
ing charges  the  carrier  must  pay  the  switching  company  for  its 
services  and  not  leave  that  to  be  done  by  the  shipper. 


Conference  Rulings.  795 

April  i8,  igoS. 

65.  SPECIAL  RATES  FOR  UNITED  STATES,  STATE, 
OR  MUNICIPAL  GOVERNMENTS.— Section  22  of  the  act 
authorizes  the  carriage,  storage,  or  handling  of  property  free  or 
at  reduced  rates  for  the  United  States,  State,  or  municipal  gov- 
ernments. As  has  before  been  decided,  such  transportation  can 
be  granted  without  the  publishing  and  filing  of  a  tarifif  therefor 
only  in  instances  where  the  arrangement  is  directly  between  such 
government  and  the  carrier;  but  it  is  considered  permissible  for 
carriers  to  incorporate  in  their  lawful  tarififs  special  rates  for 
the  United  States,  State,  or  municipal  governments  applicable  only 
to  traffic  consigned  to  such  United  States,  State,  or  municipal 
government  by  name,  in  care  of  a  recognized  officer  thereof. 
(Overruled  and  withdrawn  by  the  Commission.  See  Ruling  244 : 
see  also  Ruling  36  and  311.) 

May  4.   igo8. 

66.  JOINT  RATES  BETWEEN  A  WATER  AND  A  RAIL 
CARRIER  SUBJECTS  THE  FORMER  TO  THE  PROVI- 
SIONS OF  THE  ACT.— A  steamboat  line  agreed  upon  joint 
rates  with  a  rail  line  for  certain  passenger  and  freight  traffic: 
Held,  That  it  could  not  unite  with  a  railroad  company  in  making 
a  through  route  and  joint  rate  on  a  particular  traffic  without 
subjecting  all  its  interstate  traffic  to  the  provisions  of  the  law 
and  to  the  jurisdiction  of  the  Commission. 

In  the  matter  of  jurisdiction  over  water  carriers,  opinion  No. 
787,  the  Commission  decided  January  7,  1909,  that  carriers  of 
interstate  commerce  by  water  are  subject  to  the  act  to  regulate 
commerce  only  in  respect  of  traffic  transported  under  a  common 
control,  management,  or  arrangement  with  a  rail  carrier,  and  in 
respect  of  traffic  not  so  transported  they  are  exempt  from  its 
provisions. 

67.  HANDHOLDS— SAFETY-APPLIANCE  LAW.— The 
law  makes  no  distinction  between  passenger  and  freight  cars,  and 
handhokls  must,  therefore,  be  placed  on  the  ends  of  passenger 
cars  and  cabooses. 

68.  ADJUSTMENT  OF  CLAIMS.— It  is  not  a  proper  prac- 
tice for  railroad  companies  to  adjust  claims  immediately  on  pres- 
entation and  without  investigation.     The  fact  that  shippers  may 


796  CoxFKKExcE  Rulings. 

give  a  bond  to  secure  repayment  in  case,  upon  subsequent  ex- 
aminations, tbe  claims  prove  to  have  been  improperly  adjusted 
does  not  justify  the  practice.  (Reaffirmed  by  Ruling  236;  see 
also  Ruling  15.) 

69.  ERROR  BY  TICKET  AGENT.— A  station  agent  inad- 
vertently failed  to  indorse  "colonist  ticket"  on  a  regular  ticket 
sold  upon  a  published  colonist  rate :  Held,  That  the  connecting 
carriers  must  be  paid  their  full  proportion  of  the  first-class  rate, 
but  that  the  Commission  would  not  intervene  between  the  initial 
carrier  and  its  agent.  (Reaffirmed  by  Ruling  277;  see  also  Rul- 
ing 105.) 


/I /ay  5,  iQo8. 

70.  EFFECT  OF  A  FAILURE  IN  A  NEW  TARIFF  NAM- 
ING HIGHER  RATES  TO  CANCEL  THE  SAME  RATES 
IN  PRIOR  TARIFF.— A  carrier's  tariff  eft'ective  January  L 
1903.  named  certain  rates  between  two  points.  By  a  joint  tariff', 
effective  February  1.  1908,  higher  rates  were  named  between 
the  same  points,  but  without  reference  to  the  previous  tariffs  or 
cancellation  of  the  lower  rates  therein.  On  March  26,  1908,  a 
supplement  was  filed,  naming  the  same  higher  rates  and  cancel- 
ing the  rates  named  in  the  tariff  of  January  1,  1903:  Held, 
That  until  March  26,  1908,  when  the  original  rates  were  can- 
celed, they  remained  in  effect  and  were  the  lawful  rates.  (See 
Rulings  50  and   104;    compare  Ruling  239.) 

71.  DIFFERENT  FARES  TO  DIFFERENT  SOCIETIES 
UNLAW^FLTL. — A  tariff  covering  daily  picnic  excursions  be- 
tween certain  points  for  the  season  named  fares  for  Sundav  and 
day  schools  and  different  fares  for  "societies :"  Held.  That  the 
tariff  is  discriminatory  and  that  the  fares  for  the  school  picnics 
should  be  the  same  as  for  society  picnics. 

72.  RECONSIGNMENT  PRIVILEGES  AND  RULES.— 
(a)  Usually  the  combination  of  intermediate  rates  is  higher  than 
the  through  rate.  Frequently  a  shipper  desires  to  forward  a 
shipment  to  a  certain  point  and  have  the  privilege  of  changing 
the  destination  or  consignee  while  shipment  is  in  transit,  or  after 
it  arrives  at  destination  to  which  originally  consigned,  and  to 
forward  it  under  the  through  rate  from  point  of  origin  to  final 


COXFEREXCI-:   RULIXGS.  797 

destination.      Many  carriers  grant   such   privilege   and  generally 
make  a  charge  therefor. 

(b)  The  privilege  is  of  value  to  the  shipper,  and  in  order  to 
avoid  discrimination  it  is  necessary  for  carrier  that  grants  such 
privilege  to  puhlish  in  its  tariff  that  fact,  together  with  the 
conditions  under  which  it  may  be  used  and  the  charge  that  will 
be  made  therefor.  Such  rules  should  be  stated  in  terms  that 
are  not  open  to  misconstruction. 

(c)  Some  carriers  do  not  count  a  change  of  consignee  which 
■does  not  involve  a  change  of  destination  as  a  reconsignment, 
while  others  do  consider  it  a  reconsignment  and  charge  for  it 
as  such.  The  Commission  holds  the  view  that  without  specific 
qualifications  the  term  "reconsignment"  includes  changes  in  des- 
tination, routing,  or  consignee.  If  carrier  wishes  to  distinguish 
between  such  changes  in  its  privileges  or  charges  it  must  so 
specify  in  its  tariff  rules.  Reconsignment  rules  and  charges 
must  be  reasonable,  and  a  charge  that  would  be  reasonable  for 
a  diversion  or  change  of  destination  might  be  unreasonable  when 
applied  to  a  simple  change  in  consignee  which  did  not  involve 
change  in  destination  or  more  expensive  delivery.  (This  rule 
is  the  same  as  rule  74  of  Tariff  Circular  18 — A.) 

73.  EFFECTIVE  DATE  OF  TARIFF  FILED  BY  A  CAR- 
RIER WHEN  FIRST  COMING  UNDER  THE  LAW.— A 
carrier,  under  its  arrangements  for  the  first  time  to  participate 
in  interstate  transportation,  failed  to  note  an  effective  date  on  its 
first  tariff  schedule :  Held,  That  being  that  carrier's  first  tariff  it 
became  effective  as  soon  as  filed.     (See  Rulings  12  and  100-6.) 

74.  HOURS-OF-SER\aCE  LAW.— Employees  deadhead- 
ing on  passenger  trains  or  on  freight  trains  and  not  required  to 
perform,  and  not  held  responsible  for  the  performance  of,  any 
service  or  duty  in  connection  with  the  movement  of  the  train 
upon  which  they  are  deadheading,  are  not  while  so  deadheading 
"on  duty"  as  that  phrase  is  used  in  the  act  regulating  the  hours 
of  labor.     (See  Ruling  287-^?.) 


May  12,  ipo8. 

75.  VALIDATION  OF  TICKETS.— The  condition  that  a 
round-trip  passenger  ticket  shall  be  validated  for  the  original 
purchaser  by  carrier's  agent  at  a  given  point  is  one  of  the  con- 


798  CoxferExce  Rulings. 

ditions  which  affects  the  value  of  the  service  rendered  the  pas- 
senger and  one  of  the  conditions  that  must  be  observed  the  same 
as  the  rate  under  which  the  ticket  is  sold,  which  must  therefore 
be  stated  in  the  tariff  under  which  it  is  sold.  The  tariff  may 
provide  for  validation  at  numerous  points,  and  it  may  provide 
for  validation  at  any  point  intermediate  to  the  original  destina- 
tion named  in  the  ticket.  The  conditions  stated  upon  the  ticket 
should  not  conflict  with  the  tariff  provisions,  but  if  in  any  case 
there  should  inadvertently  be  conflict  between  the  tariff  provi- 
sions and  the  conditions  stated  on  the  ticket  the  tariff  rule  must 
govern.     (See  Rulings  125  and  167.) 

76.  REDEMPTION  OF  PASSENGER  TICKETS.— The 
unused  portion  of  a  passenger  ticket,  when  presented  by  the 
original  holder  to  the  carrier  that  issued  it.  may  lawfully  be  re- 
deemed by  the  carrier  by  paying  to  the  holder  the  difference 
between  the  value  of  the  transportation  furnished  on  the  ticket 
at  the  full  tariff'  rates  and  the  amount  originally  paid  for  the 
ticket.      (See  Ruling?   11.-,  228.  238,  26S.  and  303.) 


May  I -I,  iQoS. 

77.  TRANSIT  PRI\  ILEGES  NOT  RETROACTIVE.— 
Ruling  6,  providing  that  the  benefit  of  reconsignment  privileges 
can  not  be  given  retroactive  effect,  is  held  to  include  cleaning, 
milling,  concentration,  and  other  transit  privileges.  (See  Ruling 
166.) 


J^ine  I.  TOoS. 

78.  GRAIN  DOORS.— («)  .-X  carrier  may  not  lawfully  reim- 
burse ship]:)ers  for  the  expense  incurred  in  attaching  grain  doors 
to  box  cars  unless  expresslv  so  provided  in  its  tariff.  There  is  a 
material  dift'erence  between  the  furnishing  of  service  or  facilities 
to  carriers  by  one  who  is  not  a  shipper  and  the  furnishing  of  the 
same  facilities  or  services  by  one  who  is  a  shipper.  (See  Rulings 
19.  292.  and  360.) 

(b)  The  Commission  now  decides  that  its  ruling  above  and 
the  recjuirements  of  the  law  thereunder  will,  for  the  present  at 
least,  be  satisfied  if  the  carriers  that  propose  to  pay  shippers  for 
grain  doors   furnislied  by  such   shippers  provide  in  their  tariffs 


CONFEKKNCE    RULIXGS.  799 

that  where  grain  doors  are  necessary  and  are  furnished  by  the 
shipper  the  carriers  will  pay  the  actual  cost  of  such  doors,  with 
stated  maximum  allowances  per  grain  door  and  per  car.  (Af- 
firmed by  Ruling  267.) 

(c)  Such  maximum  allowances  per  door  and  per  car  must  be 
reasonable,  and  where  carrier  pays  for  such  doors  on  the  basis  of 
actual  cost  certified  statement  from  shipper,  verified,  as  to  the 
number  of  doors  furnished  and  the  cars  for  which  furnished, 
by  carrier's  agent,  should  in  every  instance  be  recjuired.  (Reaf- 
iirmed  by  Ruling  267;  See  also  Ruling  132.) 


June  2,  igo8. 

79.  -PRIVATE  SIDE  TRACKS"  AND  "PRR'ATE  CARS" 
DEFINED. —  (a)  A  private  side  track,  as  this  expression  is 
used  in  the  opinion  In  the  flatter  of  Demurrage  Charges  on 
Privately  Owned  Tank  Cars,  is  one  which  is  not  owned  by  the 
railroad,  is  outside  the  carrier's  right  of  way,  yards,  or  terminals, 
and  to  which  the  railroad  has  no  right  of  use  superior  to  the 
right  of  the  shipper.  This  definition  is  based,  as  we  think  it 
should  be  based,  upon  consideration  of  the  carrier's  right  to  the 
use  of  the  track  rather  than  the  ownership  of  the  land  or  rails. 
(See  modification  of  definition.  Ruling  121.) 

(b)  A  private  car  is  defined  in  the  opinion  as  "a  car  owned 
and  used  by  an  individual,  firm,  or  corporation  for  the  transpor- 
tation of  the  commodities  which  they  produce  or  in  which  they 
deal."'  It  will  include  also  cars  owned  and  leased  to  shippers  by 
])rivate  corporations.     (Qualified  by  Ruling  122.) 

(c)  The  ruling  as  to  demurrage  charges  on  private  tank  cars 
is  applicable  to  all  other  private  cars  used  l)y  the  railroads  and 
paid  for  on  a  mileage  basis. 

{d )  h  is  not  the  intention  of  the  Commission  that  its  ruling 
shall  be  given  a  retroactive  efifect.  The  demurrage  question  has 
been  in  a  state  of  great  confusion,  and  the  desire  of  the  Commis- 
sion is  to  establish  a  uniform,  fair,  and  practicable  system  for  the 
future.  Claims  for  refund  of  demurrage  charges  previously  col- 
lected in  accordance  with  regular  tarifi:'  rules  will  not  be  enter- 
tained with  favor.  (  See  Rulings  123,  128,  222,  and  note  to 
Ruling  242:  See  also  Rule  75  of  Tarifi"  Circular  18 — A.) 


800  CoxVFERENCE  Rulings. 

June  Q.  u)o8. 

80.  SIIIPMEXT  THAT  ^IO\'ED  IX  UNDER  A  FORMER 
TARIFF  DOES  XOT  LOSE  THE  BEXEFIT  OF  TRAXSIT 
PRR'ILEGE  CAXCELLED  PEXDIXG  THE  OUT  MOVE- 
MENT.— A  tariff  enabled  shippers  to  concentrate  commodities 
on  local  rates  at  a  certain  ])oint  for  shipment  within  a  named  pe- 
riod in  carload  lots,  the  in-bound  billing  to  be  surrendered  and 
through  rates  from  point  of  original  shipment  to  apply.  Before 
the  ])eriod  for  taking  advantage  of  this  privilege  had  expired  a 
new  tariff  made  a  new  arrangement:  Held,  That  with  respect  to 
shipments  that  had  moved  to  the  concentrating  point  under  the 
old  tariff'  and  which  moved  out  within  the  period  therein  allowed, 
the  old  rate  should  apply. 

81.  SUPPLEMEXTIXG  MILEAGE  BOOKS  BY  PAYIXG 
REGULAR  LOCAL  MILEAGE  RATES.— The  practice  under 
a  published  tariff'  rule  which  permits  the  holder  of  a  mileage  book 
which  does  not  contain  enough  coupons  to  enable  him  to  complete 
his  journey  to  pay  for  the  balance  of  the  journey  at  the  regular 
local  rate  per  mile,  as  published  liy  the  carrier,  is  not  unlawfuL 
(See  Ruling  382.) 

82.  CHARTER] XG  TRAIXS.— It  is  not  unlawful  for  a  rail- 
road company  to  publish  a  tariff'  under  which  a  locomotive  and 
train  of  cars  may  be  chartered  at  a  named  rate,  tickets  for  the 
journey  on  that  train  to  be  sold  by  the  person  chartering  the 
train. 

83.  BLOCKADE  BY  FLOOD.— A  carrier  accepted  a  carload 
shipment  for  movement  to  a  point  beyond  its  line.  After  deliver- 
ing the  shipment  to  a  connection  at  a  junction  point  it  was  ad- 
vised that  the  connecting  line  had  been  closed  by  floods.  The 
initial  carrier  accepted  the  return  of  the  car  from  that  line  and  or- 
dered it  forward  to  destination  via  another  route  carrying  higher 
rates,  taking  this  action  without  instructions  from  the  shipper: 
Held,.  That  the  initial  line  was  responsible  to  the  shipper  for  the 
resulting  increase  in  the  transportation  charges.  (See  Rulings 
146,  147,  and  213-a.) 

84.  A  COM.AIODITY  RATE  TAKES  THE  COMMODITY 
OUT  OF  THE  CLASSIFICATIOX.— A  carrier  having  a  high 
class  rate  on   furniture  with  a  low  minimum  also  had  a  lower 


Conference  Rueings.  801 

commodity  rate  with  a  higher  minimum.  In  response  to  an  in- 
quiry whether  they  are  privileged  to  use  either  rate  as  they  desire : 
Held,  That  the  only  purpose  of  making  a  commodity  rate  is  to 
take  the  commodity  out  of  the  classification.  The  commodity 
rate  is,  therefore,  as  stated  in  Rule  7,  Tarifif  Circular  15-A,  the 
lawful  rate.  And  if  the  carrier  does  not  desire  to  apply  it  on  all 
shipments  it  must  be  canceled.  (See  also  Rule  7  of  Tarifif  Cir- 
cular 18-A.) 


June  2^,  igi8. 

85.  SUBSTITUTING  TONNAGE  AT  TRANSIT  POINT. 
— A  milling,  storage,  or  cleaning-in-transit  privilege  is  established 
on  the  theory  that  the  commodity  may  be  stopped  en  route  for 
the  enjoyment  of  such  privilege,  and  the  commodity  or  its  product 
be  forwarded  under  the  application  of  the  through  rate  from 
original  point  of  shipment.  It  is  not  expected  that  the  identity 
of  each  carload  of  grain,  lumber,  salt,  etc.,  can  or  will  be  pre- 
served, but  in  the  opinion  of  the  Commission  it  is  unlawful  to 
substitute  at  the  transit  point,  or  forward  under  the  transit  rate, 
tonnage  or  commodity  that  does  not  move  into  that  point  on  that 
same  rate.     (Overruled  by  Ruling  203;  See  also  Ruling  181.) 

86.  POSTING  TARIFFS  AT  STATIONS.— Under  the  or- 
der of  the  Commission  of  June  2,  1908,  entitled  "In  the  Matter 
of  ^Modification  of  the  Provisions  of  Section  Six  of  the  Act  with 
Regard  to  Posting  Tariffs  at  Stations,"  if  a  subsidiary  or  small 
connecting  line  has  authorized  the  parent  company,  or  principal 
connecting  line,  to  publish  and  file  for  it  all  of  its  tarififs,  tarififs 
so  issued  and  filed  on  its  behalf  will  be  included  in  the  complete 
public  tarifif  files  of  the  parent  or  issuing  line,  and  it  will  not  be 
necessary  for  such  subsidiary  or  small  line  to  maintain  an  addi- 
tional complete  public  file. 

87.  TRANSPORTATION  FOR  EATIXG  HOUSES  OPER- 
ATED BY  OR  FOR  CARRIERS.— Carriers  subject  to  the  act 
may  provide  at  points  on  their  lines  eating  houses  for  passengers 
and  employees  of  such  carriers,  and  property  for  use  of  such  eat- 
ing houses  may  properly  be  regarded  as  necessary  and  intended 
for  the  use  of  such  carriers  in  the  conduct  of  their  business.    Such 

— 2f) 


802  Conference  Rulings. 

eating  houses,  however,  must  not  serve  the  general  public,  or  any 
portion  thereof,  with  food  prepared  from  commodities  which  have 
been  carried  at  less  than  the  full  published  rate,  and  no  utensils, 
fuel,  or  servants  at  all  employed  in  serving  others  than  passengers 
and  employees  of  the  carrier  as  such  should  be  carried  at  less 
than  tariff  rates.  Such  privileges  as  may  be  extended  under  this 
rule  shall  be  applied  only  as  to  points  local  to  the  line  on  which 
the  eating  house  is  situated.     (Compare  Ruling  124.) 

88.  HOURS-OF-SERVICE  LAW.— (a)  The  specific  proviso 
of  the  law  in  regard  to  hours  of  service  is : 

"That  no  operator,  train  dispatcher,  or  other  employee  who  by 
the  use  of  the  telegraph  or  telephone  dispatches,  reports,  trans- 
mits, receives,  or  delivers  orders  pertaining  to  or  affecting  train 
movements- shall  be  required  or  permitted  to  be  or  remain  on  duty 
for  a  longer  period  than  nine  hours  in  any  twenty-four-hour  pe- 
riod in  all  towers,  offices,  places,  and  stations  continuously  op- 
erated night  and  day,  nor  for  a  longer  period  than  thirteen  hours 
in  all  towers,  offices,  places,  and  stations  operated  only  during  the 
daytime,  except  in  case  of  emergency,  when  the  employees  named 
in  this  proviso  may  be  permitted  to  be  and  remain  on  duty  for 
four  additional  hours  in  a  twenty-four  hour  period  on  not  ex- 
ceeding three  days  in  any  week." 

These  provisions  apply  to  employees  in  towers,  offices,  places, 
and  stations,  and  do  not  include  train  employees  who,  by  the 
terms  of  the  law,  are  permitted  to  be  or  remain  on  duty  sixteen 
hours  consecutively  or  sixteen  hours  in  the  aggregate  in  any 
twenty-four  hour  period,  and  who  may  occasionally  use  telegraph 
or  telephone  instruments  for  the  receipt  or  transmission  of  orders 
affecting  the  movement  of  trains.     (See  Ruling  287.) 

(b)  Section  3  of  the  law  provides  that: 

"The  provisions  of  this  act  shall  not  apply  in  any  case  of  cas- 
ualty or  unavoidable  accident  or  the  act  of  God ;  nor  where  the 
delay  was  the  result  of  a  cause  not  known  to  the  carrier  or  its 
officer  or  agent  in  charge  of  such  employee  at  the  time  said  em- 
ployee left  a  terminal,  and  which  could  not  have  been  fore- 
seen." 

Any  employee  so  delayed  may  therefore  continue  on  duty  to 
the  terminal  or  end  of  that  run.     The  proviso  quoted  removes' 
the  application  of  the  law  to  that  trip.     (See  Ruling  287.) 


CoNFElRENCE  Rulings.  803 

June  2Q,  IQ08. 

89.  JURISDICTION  OF  ACT  OVER  LOCAL  BELT  OR 
SWITCHING  LINES.— The  question  is  asked,  "Is  a  belt  line 
owned  by  a  municipality,  which  participates  in  interstate  move- 
ments, subject  to  the  jurisdiction  of  the  act  and  of  the  Commis- 
sion?" Held,  That  it  is  subject  to  such  jurisdiction.  (Compare 
Ruling  162.) 

90.  MISROUTING  VIA  LINE  THAT  HAS  NO  TARIFF 
ON  FILE. — A  shipment  was  misrouted  and  passed  over  a  route 
via  a  part  of  which  no  rate  was  filed  with  the  Commission,  and 
was  thus  subjected  to  a  higher  charge  than  the  through  rate  via 
the  proper  route :  Held,  That  misrouting  carrier  may  be  author- 
ized to  make  refund  on  account  of  its  error  in  misrouting  ship- 
ment, and  that  carrier  which  participated  in  the  transportation 
without  lawful  tariff  applicable  thereto  should  be  dealt  with 
through  the  Division  of  Prosecutions.     (See  Ruling  93. J 

91.  A  MUCH  LONGER  AND  MORE  INDIRECT  ROUTE 
NOT  A  REASONABLE  ROUTE.— A  shipment  was  tendered 
destined  to  a  certain  point,  the  direct  route  to  which  was  over  the 
lines  of  two  carriers,  a  distance  of  358  miles,  the  rate  via  that 
route  being  22  cents.  It  was  possible  to  send  the  shipment  around 
over  the  lines  of  three  carriers,  a  distance  of  617  miles,  and  se- 
cure a  combination  rate  of  only  19  cents.  Application  for  refund 
was  made  on  account  of  the  difference  between  the  rates:  Held, 
That  the  claim  for  refund  should  be  denied  on  the  ground  that 
the  much  longer  and  indirect  route  is  not  a  reasonable  route. 
(See  Ruling  2 14. J 

92.  USE  OF  PASSES  BY  SERVANTS.— Opinion  expressed 
on  April  14,  1908,  on  the  subject  of  use  of  passes  by  servants,  is 
modified :  Held,  That  a  household  servant  when  traveling  with 
a  member  of  the  family  entitled  to  a  pass  is  included  within  the 
term  "family"  as  used  in  the  act.  (Amending  Ruling  63;  see 
also  Ruling  95-c.j 


June  JO,  ipo8. 

93.  MISROUTING  INVOLVING  CARRIERS  NOT  SUB- 
JECT TO  THE  ACT. — A  shipment  was  tendered  to  a  carrier  in 
North  Carolina,  destined  to  California.     Ship])er  reciucsted  that 


804  Conference  Rulings. 

it  be  sent  via  Xew  York  and  the  Isthmus  of  Panama.  Shipment 
was  forwarded  all  rail  under  a  rate  alleged  to  be  higher  than 
would  have  applied  via  the  route  indicated :  Held,  That  the  Com- 
mission can  not  authorize  refund  because  no  tariffs  are  on  file 
with  the  Commission  via  the  route  over  which  the  shipper  di- 
rected the  shipment  moved,  and  there  is  therefore  no  official 
measure  of  the  accuracy  of  the  claim  for  overcharge  or  the 
amount  thereof.     (See  Rulings  90  and  214.) 

94.  LEASING  CARRIER'S  PROPERTY  IN  CONSID- 
ERATION OF  LESSEE'S  SHIPMENTS.— A  carrier  leases  a 
part  of  its  property  to  a  certain  industry  under  a  contract  which 
contains  the  obligation  on  part  of  the  lessee  industry  to  make  all 
of  its  shipments  by  the  line  of  the  lessor  carrier.  Such  a  pro- 
vision plainly  implies  that  the  traffic  so  furnished  by  the  lessee 
and  so  secured  by  the  lessor  is  an  important  and  substantial  con- 
sideration which  might  amount  to  a  concession  in  the  rates  for 
transportation,  and,  therefore,  be  an  unlawful  device  or  discrim- 
ination. The  Commission  expressed  doubt  as  to  the  propriety  of 
the  practice. 

95.  NOTICE  AS  TO  THE  ISSUANCE  OF  PASSES.— It 
appearing  that  the  ruling  issued  by  the  Commission  on  the  9th 
day  of  June,  A.  D.  1908,  relative  to  the  issuance  and  use  of 
passes,  should  be  modified  in  certain  respects  relating  to  the 
forms  of  passes  to  persons  eligible  to  receive  free  transportation 
under  the  act  to  regulate  commerce,  it  is  ordered  that  said  ruling 
shall  be  amended  to  read  as  follows : 

(a)  Alany  abuses  in  the  issuance  and  uses  of  passes  have  been 
discovered  by  the  Commission  which  it  is  desired  to  correct,  and 
to  this  end,  and  because  of  the  misinterpretation  of  the  law  by 
carriers  generally,  the  Commission  at  this  time  makes  announce- 
ment that  it  will  recommend  the  indictment  and  prosecution  of 
all  carriers  and  persons  issuing  passes  to,  or  allowing  the  use 
of  passes  by,  any  persons  not  included  within  the  designated 
classes  to  whom  free  transportation  may  be  given  by  carriers 
subject  to  the  act  to  regulate  commerce  as  set  forth  in  said  act. 
Among  those  not  included  under  the  provisions  referred  to  are 
the  following : 

1.  Officers  or  employees  of  news  companies  other  than  newsboys. 

2.  Officers  or  employees  of  telegraph  or  telephone  companies,  ex- 


J 


Conference  Rulings.  805 

cepting  when  personally  engaged  in  operation,  extension,  re- 
pair, or  inspection  of  lines  upon  or  along  the  railroad  right 
of  way  and  used  in  connection  with  the  operation  of  the  rail- 
road. ( The  amendatory  act  of  June  18,  1910,  brings  tele- 
phone or  telegraph  companies  within  the  jurisdiction  of  the 
Commission;  see  Ruling  305;  see  also  Rulings  161  and  219.) 

3.  Officers  or  employees  of  surety,  transfer,  and  baggage  com- 

panies, except  baggage  agents.     (See  Ruling  216.) 

4.  Officers  or  employees  of  carriers  not  subject  to  the  act  to  regu- 

late commerce,  including  officers  and  -agents  of  steamship 
and  stage  lines  not  subject  thereto.  (See  Ruling  196;  also 
95-c.) 

5.  Officers  or  employees  of   subsidiary  corporations  engaged  in 

business  other  than  transportation  subject  to  the  act  to  regu- 
late commerce,  save  that  such  officers  and  employees  may  be 
granted  free  transportation  when  attending  to  business  im- 
posed upon  a  carrier  subject  to  the  act.  (See  Rulings  169, 
208,  and  263.) 

6.  Families  of  local  attorneys,  surgeons,  and  others  who  are  not 

regularly  employed  by  carriers.  (See  Ruling  208-a.) 
(b)  Each  pass  issued  must  bear  upon  its  face  the  name  of 
some  person  belonging  to  a  class  named  in  section  1  of  the  act 
as  eligible  to  receive  free  transportation.  In  addition  to  such 
person  so  named  a  pass  may  also  carry  not  to  exceed  a  specified 
number  of  unnamed  persons  of  any  class  eligible  to  receive  free 
transportation ;  the  number  and  the  class  to  which  such  person 
belongs  being  specified  upon  the  face  of  the  pass — that  is  to  say, 
passes  in  the  following  forms  will  be  recognized  by  the  Commis- 
sion as  legal : 

"Pass  John  Smith,  President,  car.  and  five  officers  and  employ- 
ees of  the  X.  Y.  &  Z.  Railway." 

"Pass  J.  R.  Earner  and  six  linemen,  foreman,  and  force  of  the 
Western  Union  Telegraph  Company.  Good  only  when  traveling 
in  connection  with  the  construction,  maintenance,  or  operation  of 
the  lines  of  the  Western  Union  Telegraph  Com])any  on  the  right 
of  way  of  this  A.  B.  C.  Railway  Company." 

"Pass  one  extra  messenger  of  the  Southern  Express  Company 
when  presented  with  letter  signed  by  Superintendent,  Assistant 
Superintendent,  or  Route  Agent  of  said  Express  Company,  au- 
thorizing use  and  giving  name  of  person  to  be  passed." 

"Pass  John  Smith,  section  foreman,  and  six  employees  of  X. 
Y.  &  Z.  Railway." 


806  Conference  Rulings. 

(c)  The  Commission  holds  that  the  word  "family,"  as  used 
in  section  1  of  the  act  to  regulate  commerce,  includes  those  who 
are  members  of,  and  who  habitually  reside  in,  the  household  of 
the  person  eligible  to  receive  family  passes,  including  household 
servants  when  traveling  with  the  family  or  with  any  member 
thereof,  and  relatives  who  are  in  fact  dependent  upon  such  per- 
son, although  not  actually  residing  in  his  household.  (See  Rul- 
ings 92  and  174.)  The  Commission  will,  therefore,  view  passes 
in  the  following  form  as  lawful : 

"Pass  John  Smith,  wife,  two  sons,  three  daughters,  and  two 
servants." 

"Pass  Mrs.  John  Smith  and  daughter,  account  John  Smith, 
Agent  X.  Y.  &  Z.  Railroad  Company  at  Washington,  D.  C." 

(d)  The  name  of  the  person  presenting  the  pass  must  appear 
upon  it.  Passes  intended  to  be  used  in  the  absence  of  the  head 
of  the  family  whose  occupation  makes  the  issuance  of  passes 
lawful  must,  in  addition  to  the  name  of  said  head,  show  the  name 
of  the  person  using  the  same.  (See  Ruling  290.)  For  instance, 
a  pass  to  be  used  by  John  Smith,  his  wife,  or  his  daughter,  sepa- 
rately, should  read : 

"Pass  John  Smith,  Airs.  John  Smith  and  ]\Iiss  Mary  Smith, 
account  C.  &  O.  Agent  at  Richmond,  \"a." 

(e)  Every  pass  to  an  officer  or  employee  of  a  carrier  other 
than  the  one  issuing  the  pass,  shall  indicate  the  name  and  rank- 
of  the  person  to,  or  on  behalf  of  whom,  such  pass  is  issued,  as 
well  as  the  name  of  the  carrier  employing  him. 

(/)  The  Commission  construes  the  act,  so  far  as  it  relates  to 
railway-mail  service  employees,  as  giving  such  employees  the 
right  to  receive  free  transportation  when  on  duty  in  their  cars, 
or  when  traveling  under  orders  from  a  superior  officer.  The 
Commission  does  not  now  undertake  to  say  how  far  this  portion 
of  the  act  to  regulate  commerce  is  modified  or  controlled  as  re- 
gards railway-mail  service  employees  by  other  statutes  or  by  con- 
tracts between  carriers  and  the  Post-Office  Department.  (See 
Ruling  377.) 

(g)  The  Commission  will  recognize  any  rail  or  water  carrier 
filing  a  tariff,  joint  or  local,  with  the  Commission,  as  a  carrier 
subject  to  the  act  so  far  as  the  issuance  of  passes  to  its  officers 
and  employees  may  be  concerned.    Where  a  carrier  has  no  tariffs 


CoNFEREjNCE  Rulings.  807 

on  file  with  the  Commission,  and  does  not  acknowledge  itself  sub- 
ject to  the  Commission's  jurisdiction,  the  Commission  will  re- 
gard the  issuance  of  passes  to  its  officers  or  employees  as  unlaw- 
ful, without,  however,  thereby  passing  upon  the  question  of  the 
jurisdiction  of  the  act  over  such  carrier  in  so  far  as  it  may  be 
necessary  to  assert  such  jurisdiction.  In  this  regard  reference  is 
made  to  Cosmopolitan  Shipping  Co.  v.  Hamburg- American  Packet 
Co.  et  al.,  13  I.  C.  C.  Rep.,  266,  and  In  re  Petition  Frank  Parme- 
lee  Co.,  12  I.  C.  C.  Rep.,  46.  By  reference  to  these  decisions  it 
will  be  seen  that  among  the  carriers  not  subject  to  the  act  are 
ocean  carriers  to  nonadjacent  foreign  countries  and  domestic  car- 
riers by  wagon,  stage,  or  automobile.  Carriers  covered  by  these 
decisions  are  not  eligible  to  file  tariifs  or  receive  passes.  (See 
Rulings  196,  216,  263,  and  355.) 

(/i)  The  Commission  reaffirms  Rule  63  of  Tariff  Circular 
15 — A,  now  reported  as  Ruling  208  of  this  Bulletin. 

(j)  The  Commission  can  not  undertake,  in  any  case,  to  de- 
termine whether  or  not  individuals  are  within  any  of  the  classes 
mentioned  in  section  1  of  the  act  as  eligible  to  receive  free  trans- 
portation. 

(;')  The  Commission  will  not  regard  as  unlawful  allowance 
of  use,  or  the  use  of  passes  merely  irregular  in  form,  under  this 
ruling,  during  the  present  calendar  year.  Passes,  however,  is- 
sued to  persons  not  eligible  to  receive  the  same  must  be  called 
in  at  once,  as  well  as  passes  so  loosely  framed  that  persons  not 
eligible  to  receive  free  transportation  may  be  carried  upon  them — 
that  is  to  say,  a  pass  to  "John  Smith,  family,  and  household 
servants,"  although  irregular  in  form,  will  not  be  regarded  by 
the  Commission  as  unlawful  prior  to  January  1,  1909.  A  pass, 
however,  to  "John  Smith,  car,  and  party,"  being  susceptible  of 
use  for  the  transportation  of  persons  not  within  the  act,  should 
be  immediately  corrected. 

(^)  Carriers  are  enjoined  against  the  destruction  of  records  or 
memoranda  touching  the  issuance  of  passes,  and  the  passes  them- 
selves, coming  into  the  hands  of  the  carriers  after  use,  must,  un- 
til further  order  of  the  Commission,  be  retained  for  a  period  of 
not  less  than  five  years. 

Note. — On  June  10,  1910,  the  Commission  entered  a  formal  order 
respecting  the  preservation  and  destruction  of  records  of  steam  roads, 
including   pass   records;   see   periods   there   provided. 


808  Conference  Rulings. 

October  12,  ipo8. 

96.  DEMURRAGE  OX  F.  O.  B.  SHIPMENTS.— A  pur- 
chased a  carload  of  lumber  f.  o.  b.  at  the  milling  point.  Demur- 
rage accrued  on  account  of  the  failure  of  B,  the  mill  owner,  to 
promptly  load  the  car.  Carrier  inadvertently  delivered  the  car 
to  A  without  collecting  the  demurrage.  Upon  its  inquiry  as  to 
whether  to  demand  the  demurrage  from  A  or  B :  Held,  That  the 
demurrage  must  be  collected  by  the  carrier  either  from  the  vendor 
or  the  vendee,  but  that  the  Commission  can  not  undertake  to  in- 
vestigate the  facts  and  determine  for  the  carrier  whether  the 
vendor  or  the  vendee  is  liable  for  the  charges.  (See  note  to 
Ruling  242.) 

97.  COLLECTION  BY  CARRIER  L.  C.  L.  SHIPMENTS. 
— The  Commission  condemns  as  unlawful  a  practice  under. w^hich 
a  carrier  provides  an  empty  car  at  factory  sidings,  in  which  the 
shipper  may  load  L.  C.  L.  shipments,  which  the  carrier  then 
moves  to  its  regular  freight  station  where  the  shipments  are  as- 
sorted and  placed  in  other  cars  to  be  forwarded  to  their  respec- 
tive destinations.  Such  practice  is  lawful  only  under  definite 
and  clear  taritt  authority,  non-discriminatory  in  terms  and  in  its 
application. 

98.  LOCAL  BILLING  TO  AVOID  HIGHER  THROUGH 
RATE. — A  lawful  through  rate  existed  between  two  points,  ap- 
plicable over  two  routes,  one  of  which  was  indirect,  and  there- 
fore not  ordinarily  used  by  the  carrier  for  through  movements. 
The  shipper  billed  locally  to  a  point  on  the  latter  route,  and  re- 
billed  to  destination  without  taking  either  constructive  or  actual 
possession  of  the  shipment  at  the  local  point,  but  making  his  re- 
billing  arrangements  with  the  agent  of  the  carrier  at  a  distant 
point.  L'pon  arrival  of  the  shipment  at  destination,  the  carrier 
collected  the  balance  of  the  through  rate :  Held,  That  the  local 
billing  was  not  in  good  faith,  but  was  a  device  between  the 
shipper  and  the  carrier's  agents  to  avoid  the  higher  through  rate, 
by  having  the  carrier's  agents  act  as  the  forwarding  agents  of 
the  shipper;  therefore  the  through  rate  is  the  only  rate  lawfully 
applicable.  Affirmed  in  Ruling  337.  (See  also  Rulings  24  and 
365.) 

99.  REGULATIONS  GO\'ERNING  COMMUTATION 
TICKETS  MUST  NOT  DISCRIMINATE  AS  BETWEEN 
CLASSES    OF    PERSONS.— (a)    A   carrier   oft'ers   a   46-trip 


Conference,  Ruungs.  809 

monthly  commutation  ticket  and  provides  that  it  shall  be  issued 
only  to  pupils,  without  regard  to  age,  who  are  in  attendance  on 
schools  of  a  certain  kind  or  class,  and  specifically  provides  for 
the  exclusion  of  pupils  attending  various  other  kinds  of  schools : 
Held,  That  this  regulation  is  unjustly  discriminatory,  and  there- 
fore unlawful,  but  that  carriers  may  lawfully  offer  and  use  a 
commutation  ticket  limited  in  its  sale  and  use  to  children  or 
young  persons  between  certain  stated  ages  (as,  for  instance,  from 
12  to  21  years  of  age). 

{h)  Such  arrangement  will  provide  desired  rates  for  school 
pupils  and  will  not  exclude  other  children  traveling  under  sub- 
stantially similar  circumstances  but  for  the  purpose  of  securing 
other  lines  of  instruction  or  on  other  missions.  It  will  also  pro- 
tect against  the  use  of  such  ticket  iby  adults.  The  carrier  may 
not  inquire  into  the  mission,  errand,  or  business  of  the  passenger 
as  a  condition  of  fixing  the  transportation  rate  which  such  pas- 
senger shall  pay. 

100.  EFFECTIVE  DATE  OF  TARIFF  THAT  WAS 
USED  BEFORE  AUGUST  28,  1906,  BUT  WAS  NOT  FILED 
UNTIL  AFTER  THAT  DATE.— (a)  Prior  to  the  effective 
date  of  the  amended  act  some  carriers  used  the  car-service  rules 
of  car-service  associations  under  which  to  assess  demurrage  and 
other  terminal  charges,  but  did  not  file  those  rules  with  the  Com- 
mission until  after  the  amended  act  became  effective.  Such  pub- 
lications ibore  effective  dates  antedating  their  filing,  but  indicated 
no  specific  date  subsequent  to  the  date  of  filing  upon  which  the 
schedule  should  become  effective.  The  question  is  raised  as  to 
whether  such  publications  so  filed  became  effective  on  date  of 
filing  or  thirty  days  subsequent  thereto  :  Held,  That  prior  to  Au- 
gust 28,  1906,  as  well  as  subsequent  to  that  date,  the  law  required 
carriers  amenable  to  its  provisions  to  file  with  the  Commission 
and  post  to  the  pu'blic  schedules  containing  their  terminal  charges 
"and  any  rules  or  regulations  which  in  any  wise  change,  affect, 
or  determine  any  part  or  the  aggregate"  of  their  rates,  fares, 
and  charges.  The  amended  act  prohibits  carrier  from  engaging 
or  participating  in  transportation  of  passengers  or  property,  as 
defined  in  the  act,  unless  the  rates,  fares,  and  charges  upon  which 
the  same  are  transported  have  been  filed  and  published  in  ac- 
cordance with  the  provisions  of  the  act. 


810  Conference;  Rulings. 

(b)  The  Commission  has  decided  that,  excepting  the  first  tar- 
iff .under  which  a  carrier  engages  in  interstate  transportation,  a 
tariff  that  is  filed  without  naming  date  on  which  it  is  to  take 
effect  is  unlawful  and  never  becomes  effective,  and  now  decides 
that  publications  that  were  used  prior  to  the  effective  date  of  the 
amended  act,  that  were  filed  subsequent  to  that  date  and  which 
bore  effective  dates  antedating  the  date  of  filing  thereof,  became 
effective  thirty  days  subsequent  to  the  date  of  filing  the  same. 
(See  Rulings  12  and  73.) 

101.  CANCELLATIONS  IN  TARIFFS  MUST  BE  SPE- 
CIFIC AND  C0:MPLETE.— Carrier's  tariff  contains  certain 
rates.  Joint  agent's  tariff  canceled  certain  of  those  rates,  but  the 
carrier  did  not  issue  any  corresponding  amendment  to  its  tariff,  as 
is  required  by  Rule  8,  Tariff  Circular  15-A.  It  is  essential  that 
when  one  tariff  cancels  a  part  of  another  tariff,  specific  reference 
to  the  tariff  so  affected  and  to  the  part  thereof  so  canceled  shall 
be  given,  and  that,  effective  on  the  same  date,  supplement  to  the 
tariff  so  canceled  in  part  shall  show  that  the  specific  parts  are 

canceled  by,  and  that  the  rates  will  thereafer  be  found  in 

tariff',  I.  C.  C.  No. .     In  no  other  way  can  discriminations 

and  complaints  be  avoided.  The  carrier  knows  that  such  parts 
of  its  tariff"  are  to  be  canceled  and  that  superseding  rates  are  to 
be  shown  in  another  tariff'.  There  is,  therefore,  no  difficulty  about 
arranging  its  supplement  and  furnishing  it  to  the  proper  party 
to  be  filed  with  the  issue  that  contains  the  superseding  rates. 
(See  Ruling  50;  Rule  8,  Tariff'  Circular  15-A,  amended  ac- 
cordingly; see  Rule  8  of  Tariff  Circulars  17-A  and  18-A.) 


October  ij,  ipo8. 

102.  FREE  PASSES  TO  EN-EMPLOYEES.— Under  the 
recent  amendment  to  the  antipass  provision  of  section  1 :  Held, 
That  a  pass  may  be  issued  to  a  bona  fide  ex-employee  of  any  car- 
rier subject  to  the  act,  who  is  traveling  for  the  purpose  of  enter- 
ing the  service  of  any  such  common  carrier,  whether  such  service 
has  or  has  not  previously  been  arranged  for.     (See  Ruling  158.) 


October  i6,  ipo8. 

103.  FREE  PASSES  TO  FAMILIES  OF  EMPLOYEES. 
— Upon   an    inquiry    involving   an    interpretation    of    the    recent 


A 


Confe;re;nce;  Rulings.  811 

amendment  to  the  antipass  provision  of  section  1  providing  that 
free  transportation  may  be  given  to  the  families  of  employees 
killed  in  the  service  of  common  carriers :  Held,  That  the  pro- 
vision does  not  include  the  families  of  employees  who  died  a  nat- 
ural death  while  in  the  service  of  common  carriers.  (See  Rul- 
ings 103,  173,  and  193.) 

Note. — The  amendatory  act  of  June  18,  1910,  authorizes  free  trans- 
portation to  widows  and  minor  children  of  deceased  employees,  the 
former   during  widowhood   and   the   latter   during   minority. 


November  p,  ipo8. 

104.  CONFLICT  IN  PASSENGER  TARIFFS.— Certain 
fares  of  a  carrier  had  been  published  in  a  joint  agent's  tariff 
and  also  in  its  own  tariff.  The  carrier  issued  a  new  tariff  can- 
celing  the  fares  in  its  own  tariff,  but  did  not  secure  their  can- 
cellation in  the  joint  agent's  tariff:  Held,  That  the  new  tariff' 
was  unlawful  because  in  conflict  with  the  uncanceled  tariff  of  the 
joint  agent.     (See  Rulings  50  and  70.) 

105.  PASSENGER  TICKET  HONORED  BY  WRONG 
LINE. — A  coupon  reading  over  one  line  was  honored  through 
error  by  the  conductor  of  another  line  running  between  the  same 
points,  and  the  latter  called  upon  its  conductor  to  make  good  the 
amount :  Held,  That  the  matter  was  one  of  discipline  between 
the  company  and  its  conductor,  and  was  not  cognizable  by  the 
Commission.     (See  Rulings  69  and  277.) 

106.. TARIFFS  FOR  THE  TRANSPORTATION  OF  EX- 
PLOSIVES.— Under  a  special  act  of  Congress  the  Commission 
prescribed  certain  regulations  governing  the  transportation  of 
explosives.  Such  regulations  are  law  to  the  carriers  as  well  as 
to  the  shippers,  and  they  can  not  be  changed  except  by  act  of 
Congress  or  by  this  Commission.  It  is  therefore  not  considered 
necessary  for  each  carrier  to  file  with  the  Commission  copy  of 
such  regulations  as  a  tariff  issue,  but  it  is  considered  necessary 
that  each  tariff  which  contains  rates  for  the  transportation  of  ex- 
plosives shall  also  contain  notice  that  such  rates  are  ap])licable 
in  connection  and  in  compliance  with  the  regulations  fixed  by  the 
Interstate   Commerce   Commission.     This   provision   must   be   in 


812  Conference  Rulings. 

every  such  tariff  issued  hereafter  and  must  be  incorporated  in 
existing  tariffs  by  reissue  or  supplement  as  early  as  practicable. 

If  tariff  is  governed  by  classification  it  will  be  sufficient  to  in- 
clude the  notice  in  the  classification  referred  to  as  governing  the 
tariff.  (Rule  4,  Tariff'  Circular  15-A,  amended  accordingly;  see 
also  Rule  65  of  Tariff  Circular  18-A.) 


November  lo,  igoS. 

107.  REDUCED  FARES  FOR  THE  DEPORTATION  OF 
CHINESE  NOT  PERMISSIBLE.— Special  fares  can  not  law- 
fully be  accorded  by  carriers  for  the  transportation  of  Chinese 
to  the  ports  for  deportation,  even  though  the  expense  is  paid  by 
the  Government. 

Provisions  for  the  subsistence  and  care  in  transit  of  Chinese 
being  deported  are  matters  of  contract  between  the  carrier  and 
the  Government,  and  need  not  be  published  in  the  tariffs. 

108.  HOURS-OF-SERVICE  LAW— FERRY  EMPLOY- 
EES.— The  hours-of-service  law  does  not  apply  to  employees  on 
a  ferry,  even  though  the  ferry  be  owned  by  a  railroad  company. 
The  law  applies  to  employees  connected  with  the  movement  of 
trains,  and  hence  does  not  embrace  employees  engaged  only  in 
the  operation  of  a  ferry.  This  ruling  does  not  apply  to  car  fer- 
ries.    (See  Ruling  287.) 

109.  TRANSPORTATION  OF  HOUSEHOLD  GOODS 
OF  AN  EX-EMPLOYEE. — A  carrier  gave  free  transportation 
to  an  employee  and  his  household  effects  to  the  point  where  he 
was  to  be  employed,  and  later  dismissed  him :  Held,  That  the 
Commission  can  not  rec|uire  the  carrier  to  return  the  household 
effects  free  of  charge  to  the  point  from  which  they  were  first 
moved.     (Reaffirmed  by  Ruling  255;  see  also  Ruling  208-&.) 

110.  REPAYMENT  BY  CARRIER  ON  ACCOUNT  OF 
SWITCH  TRACK.— A  shipper  in  1895  paid  $200  to  a  carrier 
as  part  of  the  cost  of  constructing  a  spur  track  to  its  warehouse. 
L  pon  application  of  the  carrier  for  permission  to  repay  the 
amount  to  the  shipper :  Held,  That  the  repayment  would  be  un- 
lawful unless  the  shipper  had  some  equity  or  ownership  in  the 
track  which  he  could  transfer  to  the  carrier  in  consideration  of 
the  payment. 


Confeirence;  Rulings.  813 

November  12,  igo8. 

111.  CHANGE  OF  RATE  WHILE  SHIPMENT  WAS  ON 
THE  OCEAN. — A  shipment  of  linoleum  left  Hamburg  on  July 
4,  at  which  time  there  was  in  effect  a  published  through  rate  to 
San  Francisco  via  New  Orleans  of  $1.10.  When  the  shipment 
reached  New  Orleans  the  through  rate  had  been  canceled,  leaving 
in  effect  a  local  rate  from  New  Orleans  to  San  Francisco  of  90 
cents.  Upon  application  for  permission  to  refund  down  to  the 
$1.10  through  rate:     Held,  That  the  application  must  be  denied. 

112.  CARETAKERS  FOR  BEES  IN  HIVES.— Upon  in- 
quiry from  a  classification  committee  it  was  agreed  that  tariff's 
may  lawfully  provide  for  free  transportation  of  caretakers  of 
bees  in  hives. 

113.  ERRORS  OF  CARRIER'S  AGENTS.— Agents  of  car- 
riers sometimes  misroute  passengers  or  by  other  error  cause  pas- 
sengers to  pay  additional  and  unnecessary  transportation  charges. 
In  the  view  of  the  Commission  such  cases  are  governed  by  the 
principles  announced  in  Rule  70,  Tariff  Circular  15- A.  (Reaf- 
firmed by  Ruling  167;  see  also  Rulings  247,  266,  and  277.  Rule 
70  of  Tariff  Circular  15-A  is  now  published  as  Ruling  214  of  this 
Bulletin.) 

114.  RECONSIGNMENT  OF  REFUSED  SHIPMENTS. 
— It  appears  that  in  some  instances  carriers  are  willing  to  recon- 
sign  refused  shipments  to  points  beyond  the  first  destination  and 
to  apply  the  tariff  rate  from  point  of  origin  to  final  destination, 
even  though  it  be  lower  than  the  rate  to  first  destination,  but 
they  do  not  feel  at  liberty  to  do  so  in  view  of  paragraph  2  of 
Rule  78,  Tariff  Circular  15-A.  It  is  optional  with  the  carrier 
whether  or  not  it  will  grant  reconsigning  privilege.  If  granted, 
the  conditions  governing  it  must  be  in  tariff,  and  if  charges  for 
back  haul  or  out-of-line  haul  are  to  be  assessed,  rule  must  so 
state. 

It  is  of  course  understood  that  satisfactory  showing  of  genuine 
transaction  and  actual  refusal  by  consignee  will  be  required. 
(Rule  78,  Tariff  Circular  15-A,  amended  accordingly;  now  pub- 
lished as  Rule  67  of  Tariff  Circular  18-A.) 

115.  REDEMPTION  OF  UNUvSED  PASSENGER  TICK- 
ETS.— Because  of  illness  or  other  compelling  reason  a  passenger 


814  Conference  Rulings. 

sometimes  abandons  a  trip  short  of  destination  to  which  fare  has 
been  paid,  or  returns  from  a  point  short  of  that  to  which  he  has 
purchased  a  round-trip  ticket.  On  the  question  of  the  right  of 
the  carrier  to  refund  fare  in  such  a  case  the  Commission  decides 
that  when  the  passenger  has  paid  more  than  lawful  tariff  fares 
for  the  journey  actually  made  the  carrier  may  lawfully  redeem 
unused  ticket  and  make  refund  on  the  basis  of  lawful  tariff  fare 
for  the  service  actually  rendered,  when  investigation  develops 
clear  identity  between  purchaser  of  ticket  and  the  one  to  whom 
refund  is  made.  (Amending  Ruling  76;  see  also  Rulings  265 
and  303.) 


November  /j,  igo8. 

116.  REFUND  OF  UNUSED  PORTION  OF  ROUND- 
TRIP  TICKET. — Because  of  a  washout  of  a  portion  of  its 
tracks  a  carrier  was  unable  to  operate  trains  and  thus  return  a 
passenger  over  that  route  within  the  time  limited  in  a  round-trip 
ticket  which  she  held.  A  circuitous  route  was  open  to  her,  but 
on  account  of  her  age  and  the  condition  of  her  health  she  did  not 
think  it  safe  to  take  so  long  a  journey,  and  therefore,  waiting  un- 
til the  tracks  had  been  repaired,  which  was  after  the  expiration 
of  the  limit  of  the  ticket,  she  purchased  a  one-way  ticket  back 
to  her  home :  Held,  That  as  the  carrier  was  not  able  to  furnish 
the  service  which  it  undertook  to  furnish  within  the  time  limited 
in  the  round-trip  ticket,  it  might  lawfully  refund  the  extra  return 
fare  so  paid  by  the  passenger.     (See  Ruling  266.) 

117.  DEMURRAGE  WAIVED  UNDER  SPECIAL  CIR- 
CUMSTANCES.— A  sidetrack  to  an  industry  upon  which  a  car- 
rier had  delivered  18  heavily  loaded  cars  sank  because  of  the 
marshy  character  of  the  roadbed:  Held,  That  the  carrier  may 
refund  demurrage  collected  for  the  necessary  detention  of  the 
cars  while  the  sidetrack  was  being  rebuilt.  (See  note  to  Ruling 
242.) 

118.  REDUCED  RATES  FOR  MUNICIPAL  GOVERN- 
MENTS IN  FOREIGN  COUNTRIES  ADJACENT.— Upon 
inquiry :  Held,  That  the  reduced-rate  transportation  for  munici- 
pal governments  permitted  under  section  22  of  the  act  does  not 
apply  to  municipal  governments  in  foreign  countries  adjacent. 


CoNFKRENCK  Rulings.  815 

119.  RESHIPPING  OF  GRAIN.— Upon  inquiry  whether  a 
proposed  tariff  rule  providing  that  "the  rate  to  be  applied  on  all 
outbound  transit  grain  of  record  shall  be  the  specific  rate  that 
is  lawfully  in  effect  from  Chicago  at  the  time  the  grain  is  re- 
shipped"  may  lawfully  be  incorporated  in  a  tariff:  Held,  That 
the  Commission  can  not  sanction  the  rule,  and  that  the  grain  can 
move  only  as  a  through  movement  on  the  through  rate  in  effect 
at  the  time  it  starts,  or  as  a  local  movement. 

120.  RESPONSIBILITY  OF  CARRIER  FOR  FAILURE 
TO  FURNISH  PROPER  CARS  UNDER  RATE  CONFINED 
TO  CARS  OF  A  CERTAIN  CLASS.— 'Certain  rates  on  coal 
published  by  a  carrier  to  points  on  a  connecting  line  were  ex- 
pressly limited  to  shipments  "loaded  in  box  or  stock  cars  only," 
because  the  connection  refused  to  handle  coal  shipments  in  open 
cars.  Upon  demand  for  cars  for  a  shipment  to  such  points  the 
carrier,  instead  of  furnishing  box  cars  to  which  the  rate  applied, 
furnished  coal  cars,  which  carried  a  higher  rate :  Held,  That  the 
carrier  having  issued  the  tariff  itself,  and  having  furnished  cars 
that  did  not  comply  with  the  tariff"  requirements,  was  responsible 
for  the  excess  charges. 


November  14,  igo8. 

121.  A  PRIVATE  SIDE  TRACK  DEFINED.— A  private 
sidetrack  is  one  that  is  outside  the  carrier's  right  of  way,  yard, 
and  terminals,  and  of  which  the  railroad  does  not  own  either  the 
rails,  ties,  roadbed,  or  right  of  way.  (Modifying  Ruling  79-a; 
see  note  to  Ruling  242.) 

122.  A  PRIVATE  CAR  OWNED  BY  ONE  SHIPPER  BUT 
USED  BY  ANOTHER. — A  private  car  owned  by  one  shipper 
but  used  with  his  consent  by  another  shipper  dealing  in  a  dif- 
ferent commodity  is  not  a  private  car  as  that  phrase  has  been 
defined  by  the  Commission  in  connection  with  demurrage  charges. 
(Qualifying  Ruling  79-b;  see  also  Ruling  128.) 

123.  DEMURRAGE  ON  PRIVATE  CARS  TEMPORA- 
RILY OUT  OF  SERVICE  STANDING  ON  CARRIERS' 
STORAGE  TRACKS.— Demurrage  is  a  charge  for  detention  to 
cars  that  have  been  set  by  carrier  for  loading  or  unloading.  Pri- 
vate cars  are  subject  to  demurrage  rules  the  same  as  is  the  car- 
riers' equipment  except  when  the  private  car  is  standing  on  the 


816  Conference  Rulings. 

private  sidetrack.  It  is  not  necessary  to  charge  demurrage  either 
on  carriers'  equipment  or  private  cars  when  same  are  temporarily 
out  of  service  and  standing  idle  upon  the  storage  tracks  of  the 
carrier  unless  provision  for  such  charge  is  included  in  carriers' 
demurrage  rules.  (  See  Rulings  79,  222,  270  and  note  to  Ruling 
242;  see  also  Rule  7S  of  Tariff  Circular  18-A. ) 


December  /,  iqo8. 

124.  FREE  TRANSPORTATION  OF  MATERIAL  AND 
WORKMEN. — A  carrier,  not  being  able  to  obtain  ice  for  refrig- 
eration purposes  at  a  division  point,  entered  into  a  contract  under 
which  a  private  company  there  undertook  to  build  a  plant  and 
manufacture  ice.  The  contract  provided  that  in  case  it  was  neces- 
sary to  enlarge  the  plant  to  meet  the  increasing  needs  of  the  car- 
rier, the  carrier  would  transport  free  of  charge  the  materials  and 
mechanics  necessary  to  make  the  enlargement.  An  enlargement 
was  required  and  made,  and  upon  application  by  the  carrier  for 
permission  to  refund  the  freight  charges  on  the  materials  used 
and  the  passenger  fares  paid  by  the  mechanics  employed  on  the 
work:  Held,  That  the  application  must  be  denied,  it  appearing 
that  the  ice  plant  also  sold  ice  commercially  in  the  community  in 
question.     (Compare  Ruling  87.) 


December  8,  igoS. 

125.  FAILURE  TO  VALIDATE  PASSENGER  TICKET. 
— L'pon  inquiry :  Held,  That  a  carrier  might  lawfully  incorpo- 
rate in  its  tariff  a  rule  providing  that  when  a  passenger  is  com- 
pelled to  pay  the  regular  return  fare  'because  of  his  failure  to 
have  his  round-trip  ticket  validated  at  the  return  starting  point, 
the  carrier  will  refund  the  extra  fare  upon  the  filing  with  it  of 
an  affidavit  by  the  holder  of  the  round-trip  ticket,  certifying  that 
the  ticket  had  been  used  in  accordance  with  all  the  conditions  of 
the  tariff  and  the  contract  on  the  ticket  except  as  to  the  matter 
of  validation.     (See  Ruling  7S.) 

126.  REFUND  OF  OVERCHARGE  ON  SHIPMENT  TO 
FOREIGN  COUNTRY  ADJACENT.— An  overcharge  was  col- 
lected on  a  shipment  of  tobacco  to  a  point  in  ]\Iexico.  On  appli- 
cation of  the  American  carriers,  in  which  the  Mexican  lines  re- 


Conference  Rulings.  817 

fused  to  join :  Held,  That  the  American  Hnes  might  refund  such 
part  of  the  total  overcharge  as  their  division  of  the  through  rate 
bears  to  the  entire  through  rate. 

127.  DAMAGE  TO  FRUIT  BY  DELAYED  NOTICE  OF 
ARRIVAL  AT  DESTINATION.— An  express  company  under- 
took to  notify  the  consignee  of  the  arrival  at  destination  of  a 
shipment  of  strawberries,  but  failed  for  some  days  to  efifect  no- 
tice partly  because  of  an  erroneous  address  on  a  postal  card: 
Held,  That  the  damage  resulting  from  the  delay  was  not  due  to 
any  violation  of  the  act  to  regulate  commerce  and  therefore  was 
not  cognizable  by  the  Commission.     (See  Ruling  366.) 


December  lo,  iQo8. 

128.  INCORPORATION  IN  TARIFFS  OF  AMENDED 
DEFINITION  OF  A  PRI\^\TE  CAR.— On  June  2,  1908,  the 
Commission  amended  its  definition  of  a  private  car  as  used  in 
the  opinion  "In  the  Matter  of  Demurrage  Charges  on  Privately 
Owned  Tank  Cars"  to  include  also  cars  owned  and  leased  to 
shippers  by  private  corporations.  It  is  held  that  this  amendment 
shall  be  incorporated  in  all  new  car-service  rules  dealing  with  this 
subject,  and  that  all  rules  shall  be  so  amended  as  to  include  leased 
cars  on  or  before  the  next  fiscal  year,  July,  1909.  The  Commis- 
sion rules,  however,  that  upon  the  amendment  of  tarififs  as  indi- 
cated, "such  leased  cars,  under  the  conditions  dealt  with  in  case 
No.  933,  may  be  treated  as  private  cars  and  be  exempt  from  de- 
murrage when  standing  on  private  tracks.  (See  Rulings  79-b, 
122,  and  222;  see  also  note  to  Ruling  242.) 

January  4,  ipog. 

129.  SIGNATURE  TO  APPLICATIONS  FOR  SPECIAL 
REPARATION. — In  case  of  the  absence,  illness,  or  disability  of 
the  executive  or  general  officer  of  a  carrier  by  whom  special  repa- 
ration applications  are  customarily  made  to  the  Commission,  such 
applications  may  be  signed  in  the  name  of  such  executive  or 
general  officer  by  his  chief  clerk,  jjrovided  the  executive  or 
general  officer  has  previously  filed  with  the  Commission  written 
authority  for  the  chief  clerk  to  append  his  signature  in  such 
cases. 


818  Conference  Rulings. 

130.  AIAINTENANCE  OF  RELATR^E  ADJUSTMENT 
IX  ISSUING  TARIFFS  TO  CONFORM  WITH  FORMAL 
ORDER  OF  THE  COMMISSION.— In  estaiblishing  rates  or 
regulations  under  an  order  of  the  Commission  in  a  formal  case, 
carrier  or  carriers  that  are  actually  and  on  the  record  parties  to 
the  case,  or  that  are  lawful  parties  to  a  joint  tariff  in  which  the 
rate  or  regulation  that  is  prescribed  is  published  by  some  carrier 
that  is  party  to  the  case,  may  include  in  the  change  or  changes 
made  in  compliance  with  the  Commission's  order  commodity  or 
commodities  that  are  grouped  with  that  or  those  which  are  speci- 
fied in  the  order;  and  may  also  include  adjustment  at  other  points 
in  order  to  preserve  established  grouping  or  relation  of  points, 
and  may  also  include  adjustment  of  rates  to  same  points  on  other 
commodities  for  the  purpose  of  maintaining  established  relation 
of  rates  between  commodities.  Provided,  all  such  changes  made 
by  authority  of  this  rule  shall  be  effected  by  reductions  in  rates 
or  charges. 

If  carrier  that  is  not  so  party  to  the  case  or  to  the  joint  tariff 
desires  to  make  on  less  than  statutory  notice  the  same  changes 
that  are  made  under  the  order  by  carrier  that  is  party  to  the 
same,  it  must  secure  special  permission  so  to  do. 

131.  "GROSS  TON"  AND  SIMILAR  PHRASES,  AS 
USED  IN  TARIFFS,  DEFINED.— The  term  "per  ton"  and 
"net  ton,"  when  used  in  tariffs,  will,  in  the  absence  of  qualifying 
words,  be  held  to  mean  a  ton  of  2,000  pounds.  The  terms  "gross 
ton"  and  "long  ton"  and  "ton  of  2,240  pounds"  will  be  held  to 
mean  a  ton  of  2,240  pounds. 


January  5,  igop. 

132.  REFUND  ON  GRAIN  DOORS.— Where  a  carrier  has 
established  a  tariff  provision  in  conformity  with  the  Commis- 
sion's rule  with  respect  to  the  payment  by  carriers  of  the  cost 
of  grain  doors,  and  it  appears  that  prior  to  the  publication  of 
such  a  tariff  it  had  been  the  practice  of  carrier  to  pay  for  grain 
doors  furnished  by  shippers :  Held,  That  applications  may  be 
made  on  the  special  reparation  docket  for  authority  to  refund  on 
the  basis  of  the  tariff'  provision  for  grain  doors  furnished  within 
six  months  prior  to  the  effective  date  of  the  tariff"  rule.  (See 
Rulings  19,  78,  267,  292  and  360.) 


Conference  Ruungs.  819 

January  J,  ipog. 

133.  OVERCHARGE  ON  ONE  SHIPMENT  OFFSET 
AGAINST  UNDERCHARGE  ON  ANOTHER.— Before  it  had 
returned  an  overcharge  on  one  shipment  the  carrier  discovered 
that  it  had  inadvertently  made  an  undercharge  on  another  ship- 
ment by  the  same  shipper,  which  he  refused  to  pay.  Upon  in- 
quiry by  the  carrier  whether  it  could  lawfully  offset  the  over- 
charge against  the  undercharge :  Held,  That  the  Commission  has 
no  authority  to  control  the  disposition  of  an  overcharge  so  long 
as  the  amount  is  passed  by  the  carrier  to  the  credit  of  the  shipper. 
Superseded  by  Ruling  323.     (Compare  Ruling  48.) 

134.  FREE  TRANSPORTATION  WHEN  TAKING 
MEASUREMENTS  OF  EMPLOYEES  FOR  UNIFORMS.— A 
carrier  requires  that  certain  of  its  employees  shall  wear  uniforms 
made  from  goods  of  texture  and  color  and  according  to  specifi- 
cations prescribed  by  the  carrier.  The  carrier  employs  a  certain 
firm  to  make  such  uniforms  for  any  and  all  of  its  employees  at 
agreed-upon  prices.  A  iman  is  sent  over  the  line  to  take  the 
measures  and  orders  of  employees  for  such  uniforms.  The  em- 
ployee generally  gives  an  order  on  the  carrier  for  the  amount  of 
his  order,  which  amount  the  carrier  deducts  in  whole  or  in  part 
from  wages  due  the  employee  and  the  carrier  pays  the  firm  for 
the  uniform. 

We  are  asked  if  the  carrier  may  lawfully  continue  granting 
free  transportation  to  man  so  taking  measures  and  orders  for 
uniform :  Held,  That  having  its  employees  properly  uniformed 
is  a  duty  of  the  carrier  in  the  interest  of  the  carrier  and  of  its 
patrons,  and  therefore  the  man  so  sent  over  its  lines  for  the  pur- 
pose named  is,  for  that  purpose  and  while  engaged  in  that  work, 
performing  a  duty  devolving  upon  that  carrier  and  may  lawfully 
be  given  free  transportation  to  the  extent  necessary  for  the  per- 
formance of  that  duty,  provided  he  does  not  in  the  same  con- 
nection receive  any  orders  from  or  sell  any  goods  to  persons 
who  are  not  bona  fide  employees  of  that  carrier.  (See  Rulings 
208-&  and  346.) 


January  2/,  ipop. 

135.  DEMURRAGE  ON  INTERSTATE  SHIPMENTS.— 
Rule  in  Supplement  No.  2  to  Tariff  Circular  15-A,  entitled  "De- 


820  Conference  Rulings. 

murrage  on  interstate  shipments,"  is  amended  by  adding  thereto 
the  following: 

■'It  is  not  permissible  to  provide  that  demurrage  may  be  re- 
funded or  waived  in  case  of  inclement  weather  and  leave  it  to 
the  judgment  of  some  person  to  determine  what  constitutes  in- 
clement weather.  It  is  permissible  to  provide  that  demurrage 
charges  shall  be  waived  or  refunded  in  case  of  weather  inter- 
ference of  such  severity  as  to  damage  the  freight  in  handling  it 
into  or  from  the  car,  or  when  shipment  is  frozen  so  as  to  prevent' 
or  seriously  hinder  unloading,  or  when  because  of  flood  or  high 
water,  or  snowdrifts  which  it  is  the  carrier's  duty  to  remove,  it 
is  impracticable  to  get  to  car  for  loading  or  unloading." 

(Amending  Ruling  223.  See  Ruling  358  and  see  also  impor- 
tant note  to  Ruling  242.  Rule  in  Supplement  No.  2,  referred  to, 
is  now  reported  as  Rule  75  of  Tariff  Circular  18-A.) 

136.  ACCRUED  CLAIMS  NOT  IW'ALIDATED  BY 
SUBSEQUENT  CANCELLATION  OF  ABSORPTION 
RULE. — A  tariff  providing  for  the  absorption  of  inbound  switch- 
ing charges  on  certain  traffic  also  provided  that  they  would  not 
be  absorbed  when  the  expense  bills  therefor  were  presented  more 
than  six  months  after  their  date.  Within  six  months  after  cer- 
tain switching  services  had  been  performed  bills  therefor  were 
presented,  but  the  carrier  refused  payment  on  the  ground  that 
during  the  interval  the  absorption  rule  referred  to  had  been 
canceled:  Held,  That  the  subsequent  cancellation  could  not  in- 
validate a  claim  alreadv  accrued. 


February  2,  igop. 

137.  INITIAL  CARRIER  LIABLE  FOR  ^IISROUTING. 
— An  initial  carrier  delivered  a  shipment  to  a  connection,  but  did 
not  give  it  any  routing  instructions  beyond  noting  on  the  waybill 
the  through  rate  via  the  cheaper  of  two  available  routes.  The 
connecting  carrier  sent  it  over  the  route  yielding  it  the  greater 
revenue,  but  carrying  the  higher  through  rate :  Held,  That  the 
initial  carrier  is  liable  for  the  misrouting.  (Construed  and 
amended  by  Ruling  286-c.) 

138.  CHARGES  FOR  MOVING  PRIVATE  CAR.— A  tar- 
iff provided  for  the  movement  of  a  private  car  or  sleeper  at  the 
regular  fare  for  each  occupant  with  a  minimum  of  20  adults 
fares    and   a    minimum    collection    of    $25    for    each    movement. 


I 


Conference  Ruungs.  821 

Its  direct  line  being  blockaded  by  a  washout,  a  carrier  sent  in- 
dividual passengers  around  a  longer  route  over  its  lines  at  the 
short-line  fare,  but  charged  the  occupants  of  such  a  private 
car  then  on  its  lines  the  full  mileage  rates  for  the  longer 
haul :  Held,  That  under  the  tariff  rule  the  car  and  party  should 
have  moved  as  the  individual  passengers  were  moved  under  the 
same  circumstances ;  and  that  the  short-line  fare  ought  also  to 
have  been  applied  to  the  private  car  and  party.  (See  Ruling 
213.) 

139.  STATUTE  OF  LIMITATION.— Upon  inquiry  the 
Commission  declines  to  express  any  opinion  as  to  the  jurisdiction 
of  the  courts  over  a  claim  for  damages  arising  out  of  the 
negligent  misrouting  of  a  shipment  by  a  carrier,  the  claim 
having  been  presented  to  the  Commission  more  than  two  years 
after  it  had  accrued  and  when  the  Commission's  power  to  award 
relief  had  been  barred  by  the  statute.  (Construed  and  amended 
by  Ruling  286.) 

140.  MISROUTING  SHIPMENT  THAT  COULD  MOVE 
INTRASTATE.— A  shipment  destined  to  another  point  in  the 
same  state  was  delivered  to  a  carrier  without  routing  instructions. 
It  was  sent  by  a  route  which  took  it  outside  the  state  lines,  and 
required  the  payment  of  an  interstate  rate  higher  than  the  state 
rate  which  would  have  applied  on  an  available  intrastate  route : 
Held,  That  the  Commission  recognizes  the  right  of  the  shipper 
to  route  his  shipment,  which  in  this  instance  the  shipper  neglected 
to  do ;  that  the  shipment  moved  interstate,  and  that  the  Commis- 
sion can  not  say  that  the  interstate  line  can  apply  any  other  than 
its  lawfully  published  tariff  rate  except  under  special  permission 
or  order  of  the  Commission.     (See  Rulings  214  and  251.) 

141.  TARIFF  IS  NOT  GOVERNED  BY  CLASSIFICA- 
TION EXCEPT  WHEN  SO  SPECIFIED.— A  tariff  naming 
commodity  rates  on  strawberries  in  carloads  fixed  a  certain  rate 
on  a  minimum  of  100  crates,  and  a  lower  rate  on  a  minimum  of 
200  crates.  The  classification  in  that  territory  provided  that  car- 
load rates  would  apply  only  when  the  carload  is  shipped  from 
one  station  in  one  day  by  one  shipper  to  one  consignee  and  des- 
tination. The  shipments  in  question  belonged  to  different  owners, 
but  with  the  knowledge  and  consent  of  the  carrier  and  under  the 


822  Conference  Rulings. 

admitted  intent  of  the  tariff,  were  loaded  and  forwarded  as  car- 
load shipments.  They  were  loaded  to  or  beyond  the  minimum  of 
200  crates  per  car :  Held.  That  they  were  entitled  to  the  applica- 
tion of  the  lower  rate  on  the  basis  of  the  200-crate  minimum. 


February  8,  ipop. 

142.  BUXCHIXG  CARS  IX  TRAXSIT.— Upon  an  informal 
complaint  that  cars  were  delayed  in  transit  and  delivered  by  a 
carrier  in  such  number  as  to  exceed  the  shipper's  facilities  for 
unloading  within  the  free  time :  Held,  That  tariffs  ought  to  con- 
tain a  rule  providing  that  when,  by  fault  of  the  carrier,  cars  are 
bunched  in  excess  of  the  shipper's  or  consignee's  ability  to  handle 
them  within  the  free  time,  demurrage  will  not  accrue.  In  the 
absence  of  such  a  rule  the  Commission  can  determine  the  reason- 
ableness of  such  a  practice  only  upon  complaint  filed.  (See  note 
to  Ruling  242.) 

143.  AIISROUTIXG  OF  COMPAXY  MATERIAL.— The 
initial  carrier,  disregarding  instructions  to  route  a  shipment 
through  a  particular  junction,  moved  it  to  destination  ov«r  its 
own  lines,  the  rates  over  the  two  routes  being  the  same.  Al- 
though the  shipment  was  consigned  to  a  private  person,  it  was 
in  fact  the  property  of  the  connecting  line,  which  therefore  could 
have  hauled  it  free  of  charge  from  the  junction  point  to  desti- 
nation. Xotwithstanding  the  fact  that  the  initial  carrier  had  no 
notice  and  was  not  chargeable  with  notice  that  it  was  company 
material :  Held,  That  the  initial  line  is  liable  for  the  additional 
charges  on  the  ground  that  a  carrier  exercising  the  right,  under 
Rule  70  of  Tariff  Circular  15-A,  to  dictate  intermediate  routing 
must  make  its  election  at  the  time  it  accepts  the  shipment,  and 
that  if  the  carrier  accepts  the  shipment  with  specific  instructions 
it  must  so  move  the  traffic  or  bear  the  damages  arising  out  of 
its  departure  from  the  instructions.  (Rule  70  is  reported  as 
Ruling  214  of  this  Bulletin.) 

144.  SWITCHIXG  SHIPMEXTS  UPOX  WHICH  TRAXS- 
PORTATIOX  CHARGES  HAVE  XOT  BEEX  PAID.— A 
shipment  was  forwarded  with  instructions  to  give  delivery  on  a 
certain  road.  The  car  moved  over  the  proper  route  to  destina- 
tion, and  was  tendered  for  switching  to  the  road  indicated  in  de- 
livery directions.     Under  long-established  custom,  it  declined  to 


Conference  Ruungs.  823 

assume  responsibility  for  charges  on  the  shipment  and  refused 
to  accept  the  car  until  transportation  charges  had  been  paid.  The 
carrier  that  brought  the  car  in  mailed  a  notice  to  the  address  of 
consignee,  who  was  not  known,  and  before  the  difficvilty  was 
straightened  out  demurrage  accrued :  Held,  That  the  demurrage 
charges  lawfully  accrued  and  should  stand. 

145.  A  TARIFF  RULE  THAT  IS  UNLAWFUL  PER  SB 
CAN   NOT  BE   USED.— A  tariff  contained  a   rule  providing 

that : 

"When  freight  can  not  be  disposed  of  at  point  held  for  sufifi- 
cient  amount  to  realize  by  sale  both  freight  and  car  service,  or 
storage  charges,  demurrage  charges  may  be  refunded,  waived,  or 
canceled." 

Held,  That  the  performance  of  a  transportation  service  deter- 
mines the  obligation  of  the  carrier  to  collect  and  of  the  shipper 
to  pay  the  published  rates  therefor  and  no  subsequent  fact,  hav- 
ing no  relation  to  the  service,  can  lawfully  be  made  the  basis  for 
a  refund  or  other  departure  from  such  rates.  The  provision  is 
therefore  unlawful  per  se  and  can  not  be  accepted  as  authority 
for  a  waiver,  refund,  or  cancellation  of  the  tariff  charges  even 
as  to  a  shipment  made  while  the  provision  was  contained  in  the 
published  tariff.     (See  note  to  Ruling  242;  compare  Ruling  4L) 

146.  IMPROPER  AND  UNLAWFUL  TARIFF  PROVI- 
SION.— A  carrier's  tariff  contained  the  following  rule: 

"The  Railway  reserves  the  right  to  route  through  to 

destination  property  delivered  to  it  for  transportation  at  the 
through  rates  shown  in  this  tariff;  and  every  carrier  participat- 
ing in  such  transportation  shall  have  the  right,  in  cases  of  neces- 
sity, including  floods,  embargoes,  and  blockades,  to  forward  said 
property  by  any  carrier  between  the  point  of  shipment  and  the 
point  to  which  the  rate  is  given.  All  additional  risks  and  in- 
creased expense  incurred  by  reason  of  change  in  route  in  cases 
of  necessity,  including  floods,  embargoes,  and  blockades,  shall  be 
borne  by  the  owner  of  the  goods  and  be  a  lien  thereon." 

Held,  That  this  rule  is  improper  and  unlawful.  (Compare 
Ruling  183;  see  also  Ruling  83.) 


Febniary  p,  igop. 

147.  RATE  MUST   APPLY   ACCORDING   TO   MOVE- 
MENT.— Upon  the  arrival  of  a  shipment  at  the  junction  desig- 


824  Conference  Rulings. 

nated  in  the  consignor's  routing  instructions  it  appeared  that,  be- 
cause of  a  washout  on  its  hues,  the  connecting  carrier  could  not 
accept  the  movement.  The  shipper  thereupon  assumed  custody 
of  the  shipment  and  forwarded  it  by  a  water  Hne :  Held,  That 
the  carrier  must  collect  its  local  rate  to  the  junction  point  and 
can  not  apply  its  proportion  of  the  through  rate.  (See  Rul- 
ing 83.) 

148.  SIDE  TRIPS  MUST  BE  SHOWN  IX  THROUGH 
TARIFFS. — Held,  That  side  trips  for  passengers  at  free  or  re- 
duced rates  limited  to  holders  of  through  tickets  are  not  lawful, 
unless  the  tarift'  under  which  the  through  ticket  is  sold  states  that 
such  side  trips  will  be  furnished.     (Modified  by  Ruling  177.) 

149.  AMENDED  RULE  14  OF  THE  RULES  OF  PRAC- 
TICE.—  (a)  L^nless  otherwise  specially  ordered  printed  briefs 
shall  be  filed  on  behalf  of  the  parties  in  each  case.  The  brief  for 
complainant  and  the  brief  or  briefs  for  the  defendants,  or  in- 
terveners, shall  contain  an  abstract  of  the  evidence  relied  upon 
by  the  parties  filing  the  same,  and  in  such  abstract  reference  shall 
be  made  to  the  pages  of  the  record  wherein  the  evidence  appears. 
The  abstract  of  evidence  should  follow  the  statement  of  the  case 
and  precede  the  argument. 

{b)  Briefs  shall  be  printed  in  12-point  type  on  antique-finished 
paper  5%  inches  wide  by  9  inches  long,  with  suitable  margins, 
double-leaded  text  and  single-leaded  citations.  (  Same  as  Rul- 
ing 40. ) 

(c)  At  the  close  of  the  taking  of  testimony  in  each  case  the 
Commissioner  or  examiner  before  whom  such  testimony  is  taken 
shall  fix  the  specific  dates  on  or  before  which  the  briefs  of  the 
respective  parties  must  ^be  filed  with  the  Commission  and  served 
on  the  adverse  parties.  The  dates  so  fixed,  unless  otherwise  or- 
dered at  said  time,  shall  allow  to  the  respective  parties  the  fol- 
lowing periods  of  time  within  which  to  file  with  the  Commission 
and  serve  their  respective  briefs  on  the  adverse  parties,  to  wit : 
To  the  complainant,  thirty  days  from  the  date  of  the  conclusion 
of  the  testimony ;  to  the  defendants  and  inten-eners,  fifteen  days 
after  the  specific  date  fixed  for  the  complainant ;  and  to  com- 
plainant for  reply  brief,  ten  days  after  the  date  fixed  for  defend- 
ants or  interveners.  If  the  briefs  of  the  respective  parties  are 
not  filed  and  served  on  the  date   for  each,  the  case   will  stand 


Conference  Ruungs.  825 

submitted  without  briefs  on  the  date  that  defendants'  or  inter- 
veners' briefs  are  due.  Briefs  of  parties  not  filed  as  aforesaid, 
and  served  on  the  respective  parties  on  or  before  the  specific 
dates  fixed  therefor,  will  not  be  received  or  considered  by  the 
Commission. 

(d)  All  briefs  shall  be  filed  with  the  secretary  and  shall  be  ac- 
companied by  notice  showing  service  upon  the  adverse  parties, 
and  15  copies  of  each  brief  shall  be  filed  for  the  use  of  the  Com- 
mission. 

(e)  The  parties  will  be  required  to  comply  strictly  with  this 
rule,  and,  except  for  good  cause  shown,  no  extension  of  time  will 
be  allowed.  Applications  for  extension  of  time  in  which  to  file 
brief  shall  ibe  by  petition  in  writing,  stating  the  facts  on  which 
the  application  rests,  and  must  be  filed  with  the  Commission  at 
least  five  days  before  the  time  for  filing  such  briefs  has  expired. 

(/)  Applications  for  oral  argument  may  be  made  by  any  party 
at  the  close  of  the  taking  of  the  testimony  or  at  the  time  of  the 
filing  of  his  brief.  Such  application  can  be  granted  only  by  the 
Commission. 


February  ii,  igop. 

150.  CARETAKERS  UNDER  SECTION  22  OF  THE 
ACT. — Section  22  of  the  act  provides — 

"That  nothing  in  this  act  shall  prevent  the  carriage,  storage,  or 
handling  of  property  free  or  at  reduced  rates  for  the  United 
States,  state,  or  municipal  governments,  or  for  charitable  pur- 
poses, or  to  or  from  fairs  and  expositions  for  exhibition  thereat, 
or  the  free  carriage  of  destitute  and  homeless  persons  trans- 
ported by  charitable  societies,  and  the  necessary  agents  employed 
in  such  transportation." 

Held,  That  the  words  "and  necessary  agents  employed  in  such 
transportation"  modify  the  entire  preceding  part  of  the  section, 
and  that  the  necessary  caretakers  of  property  transported  for  the 
United  States,  state,  or  municipal  governments,  or  for  charitable 
purposes,  or  to  or  from  fairs  and  expositions  for  exhibition 
thereat,  may  legally  be  carried  free  or  at  reduced  rates  by  car- 
riers subject  to  the  act,  as  well  as  the  caretakers  of  destitute  and 
homeless  persons  transported  by  charitable  societies.  The  words 
"necessary  agents"  as  used  in  this  section  are  interpreted  to  mean 
those  persons  necessary  to  the  safe  and  proper  care  of  the  ])rop- 


826  Conference  Rulings.  • 

erty  during  the  period  of  transportation,  and  may  not  properly  be 
extended  to  cover  any  persons  other  than  those  who  actually  ac- 
company, such  property  and  are  actually  necessary  to  its  care. 
(Compare  Ruling  171.) 


March  i,  ipop. 

151.  RELIEF  OF  AGENT  DOES  NOT  RELIEVE  CAR- 
RIER.— Through  error  an  agent  inserted  a  route  in  a  round-trip 
ticket  over  which  the  published  fare  was  $10  in  excess  of  the 
amount  actually  collected  from  the  passenger.  Upon  the  request 
of  the  carrier  for  permission  to  relieve  its  agent  of  the  uncol- 
lected undercharge:  Held,  That  the  collection  of  the  amount 
from  the  agent  would  not  in  any  way  relieve  the  carrier  of  its 
responsibility  for  failing  to  collect  the  full  tariff  fare  from  the 
passenger. 

152.  RIGHT  OF  SHIPPER  TO  PAY  FREIGHT 
CHARGES  ON  FICTITIOUS  WEIGHT  IN  ORDER  TO 
RECEIVE  FREE  ICING. — A  consignor  having  a  shipment  of 
dressed  poultry  weighing  9,910  pounds  offered  to  pay  freight 
charges  on  the  basis  of  10,000  pounds  in  order  to  have  the  ad- 
vantage of  free  icing  under  a  tariff  rule  providing  that  the  cost 
of  icing  would  not  be  assumed  by  the  carrier  when  the  weight 
in  each  car  was  less  than  10,000  pounds ;  but  the  carrier  refused 
to  accept  the  77  cents  additional  freight  charges  and  compelled 
the  shipper  to  pay  $5.25  for  the  icing:  Held,  In  analogy  to  the 
common  practice  of  carriers  to  apply  the  carload  rate  and  mini- 
mum on  shipments  of  less  weight  where  the  application  of  the 
less-than-carload  rate  would  result  in  higher  charges,  that  such 
a  tariff  rule,  if  susceptible  of  the  construction  placed  upon  it  by 
the  carrier,  is  unreasonable  and  ought  to  be  amended. 


April  5,  I  pop. 

153.  CARRIER  WHEN  A  SHIPPER  CAN  NOT  EVADE 
PAYMENT  OF  LAWFUL  RATES  OF  A  CONNECTION 
BY  SECURING  TRACKAGE  RIGHTS  OVER  ITS  LINE.— 
An  interstate  carrier  desiring  stone  for  ballast  on  its  right  of 
way,  leased  a  trackage  right  over  a  short  connecting  line  leading 
to  a  quarry,  and  proposed  to  purchase  the  stone  at  the  quarry  and 
haul  it  to  its  own  line  with  its  own  crews  and  equipment:    Held, 


Conference  Ruungs.  827 

That  the  Commission  must  decline  to  sanction  the  arrangement 
for  the  reason  that  the  carrier  under  the  circumstances  is  a 
shipper  and  the  proposed  arrangement  is  a  mere  device  to  evade 
the  payment  of  the  lawful  rates  and  would  result  in  unlawful 
discrimination.     (See  Ruling  225.) 

154.  TICKETS  PURCHASED  AT  THE  REGULAR  PUB- 
LISHED FARE  MAY  BE  GIVEN  BY  A  LAND  COMPANY 
TO  PROSPECTIVE  PURCHASERS.— A  land  company  hav- 
ing no  relations,  direct  or  indirect  with  a  carrier  has  a  lawful 
right  to  pay  -all  or  any  part  of  the  carrier's  lawful  transportation 
charges  for  such  persons  as  it  may  choose  to  supply  with  tickets. 

155.  MOVEMENT  BETWEEN  PORTS  IN  CONNEC- 
TION WITH  RAIL  HAULS  TO  AND  FROM  INLAND 
POINTS  SUBJECT  TO  THE  ACT.— Traffic  moving  by  rail 
from  an  inland  point  to  a  port  and  thence  by  water  to  another 
port,  or  moving  by  water  from  one  port  to  another  port  and 
from  the  latter  port  to  an  inland  point  by  rail,  and  which  does 
not  pass  into  the  possession  or  custody  of  the  owner  or  his  agent 
at  the  port,  is,  when  interstate  traffic,  subject  to  the  act  and  under 
the  jurisdiction  of  the  Commission.     (See  Ruling  201.) 

156.  DELIVERING  CARRIER  MUST  COLLECT  LAW- 
FUL CHARGES  UPON  PREPAID  SHIPMENTS.— Upon 
inquiry:  Held,  That  it  is  the  duty  of  the  delivering  carrier  to 
collect  the  lawful  rates  on  prepaid  shipments  and  to  correct  any 
errors  that  may  have  been  made  by  the  agents  of  the  initial  car- 
rier in  billing  or  in  the  collection  by  the  initial  carrier  of  the  pre- 
paid charges.      (See  Rulings  16,   187,  and  311.) 


April  6,   ipop. 

157.  FREE  TRANSPORTATION  FOR  OFFICERS  AND 
AGENTS  OF  EXPRESS  COMPANIES  AND  THEIR  FAM- 
ILIES.— ^Upon  inquiry  it  was  Held,  That  a  carrier  subject  to 
the  act  may  lawfully  give  free  or  reduced  rate  transportation  to 
the  officers  and  agents,  and  their  families,  of  express  companies 
that  are  subject  to  the  act.  The  Commission's  decision  in  formal 
case  No.  1985.  In  the  Matter  of  Contracts  of  Express  Compa- 
nies for  Free  Transportation  of  Their  Men  and  Material  over 
Railroads,  16  I.  C.  C.  Rep.,  246,  is  not  to  be  understood  as  con- 
tradicting or  rescinding  this  ruling.     (See  Ruling  361.) 


828  Conference;  Rulings. 

158.  FREE  TRANSPORTATION  TO  FAMILIES  OF 
EX-EMPLOYEES. — Free  transportation  may  lawfully  be  ac- 
corded to  members  of  the  family  accompanying  an  ex-employee 
traveling  for  the  purpose  of  entering  the  service  of  any  common 
carrier  subject  to  the  act.     (See  Ruling  102.) 

159.  BILL  OF  LADING  SPECIFYING  A  ROUTE,  BUT 
NAMING  A  RATE  APPLICABLE  OVER  ANOTHER 
ROUTE. — A  bill  of  lading  showed  both  a  rate  and  a  route,  but 
the  rate  did  not  apply  over  the  route  named :  Held,  That  in  all 
such  cases  the  shipment  should  be  forwarded  via  the  route  over 
which  the  stated  rate  applies  unless  the  rate  via  the  specified 
route  makes  lower,  in  which  event  the  specified  routing  must  be 
followed.     (Reaffirmed  and  amended  by  Ruling  286-/.) 

160.  HIGHER  RATES  WHEN  SHIPMENTS  ARE  TEN- 
DERED WITH  OTHER  THAN  UNIFORM  BILL  OF  LAD- 
ING.— A  carrier's  tariff  provided  higher  rates  on  shipments  not 
tendered  with  a  uniform  bill  of  lading :  Held,  That  the  tender 
of  a  shipment  accompanied  by  other  than  a  uniform  bill  of  lad- 
ing may  not  be  taken  by  the  carrier  as  evidence  of  the  shipper's 
election  to  use  the  higher  rate.  The  carrier  must  direct  his  atten- 
tion to  the  fact  that  a  lower  rate  is  available  under  the  uniform 
bill  of  lading.     (Compare  Ruling  226.) 


April  12,  iQog. 

161.  TELEPHONE  AND  TELEGRAPH  LINEMEN  NOT 
ENTITLED  TO  FREE  TRANSPORTATION.— Upon  inquiry 
as  to  whether  a  rail  carrier  has  the  right  to  issue  free  transporta- 
tion to  lineman  of  telephone  and  telegraph  companies  not  em- 
ployed on  its  line :  Held,  That  the  Commission  adheres  to  its 
former  decision  that  linemen  are  not  entitled  to  free  transportation 
except  upon  the  line  of  railway  on  which  they  are  actually  em- 
ployed, and  only  when  so  engaged.  ( See  Ruling  305  ;  see  also 
Rulings  95-0,  par.  2,  and  219.) 

Note. — Telegraph  and  telephone  companies  are  brought  within  law 
by  the  amendatory  act  of  June  18,  1910;  see  anti-pass  provisions  of 
section  one. 

162.  MUNICIPAL  FERRIES  SUBJECT  TO  THE  ACT 
WHEN  PARTICIPATING  IN  TRANSPORTATION  DE- 
FINED BY  THE  STATUTE.— The  city  of  New  York  operates 


Conference  Rulings.  829 

a  municipal  ferry  between  St.  George  and  the  foot  of  Whitehall 
street.  The  Staten  Island  Rapid  Transit  Company  sells  commu- 
tation tickets  from  Perth  Amboy  to  the  Whitehall  street  pier, 
and  files  a  tariif  of  local  and  joint  passenger  fares  to  cover  such 
transportation.  Upon  inquiry  from  the  commissioner  of  docks : 
Held,  That  the  municipality  must  join  in  the  tariffs.  (Compare 
Ruling  89. ) 

163.  REFUND  ON  ACCOUNT  OF  FULL-FARE  TRANS- 
PORTATION USED  BY  A  BOY  UNDER  12  YEARS  OF 
AGE  NOT  PERMISSIBLE.— A  purchaser  of  two  full-fare 
tickets  called  upon  the  initial  carrier  for  a  refund,  after  they  had 
been  used,  on  the  ground  that  he  had  asked  for  a  ticket  and  a 
half,  and  that  he  had  used  one  of  the  full-fare  tickets  for  his  son, 
who  was  under  12  years  of  age.  The  agent  of  the  carrier  denied 
that  a  half-fare  ticket  had  been  requested,  and  the  fact  appeared 
that  the  father  had  accepted  and  paid  for  two  full  fares :  Held, 
That  the  Commission  would  not  authorize  a  refund. 

164.  A  CARRIER  MUST  PUBLISH  FARES  AND  OF- 
FER TO  THE  PUBLIC  RAILROAD  TICKETS  INDE- 
PENDENT OF  OMNIBUS  ARRANGEMENTS.— A  carrier 
under  a  tariff  provision  sells  excursion  tickets  to  a  point  on  its 
line  to  which  is  attached  a  coupon  for  carriage  from  that  point 
to  Luray  Caverns  and  return  on  the  omnibuses  of  a  designated 
transfer  company:  Held,  That  this  is  not  a  discrimination  under 
the  act  against  another  transfer  company.  But  the  Commission 
holds  that  while  such  tickets  may  lawfully  be  sold,  the  carrier 
must  publish  the  railroad  fare  to  the  point  in  question  and  sep- 
arately show  bus  fare  beyond,  and  must  also  have  on  sale  tickets 
to  that  point  at  the  rate  named  without  bus  coupons  attached. 

165.  OFFICERS  AND  EMPLOYEES  OF  A  RAILROAD 
RECEIVER  ENTITLED  TO  FREE  TRANSPORTATION. 
— Upon  inquiry  from  a  receiver  duly  appointed  by  the  court  to 
manage  the  property  and  assets  of  a  railroad  company:  Held, 
That  officers  and  employees  engaged  under  the  receiver  in  the 
operation  of  the  railroad  occupy  the  same  position  under  the 
anti-pass  provision  of  the  act  as  do  the  officers  and  employees  of 
any  other  railroad. 


830  Conference  Rulings. 

April  IS,  ipop. 

166.  RETROACTIVE  APPLICATION  OF  RECOXSIGN- 
ING  PRIMLEGE  NOT  PERAIISSIBLE.— Adhering  to  Rul- 
ing 6,  the  Commission  will  not  sanction  the  application,  retroact- 
ively, of  a  reconsigning  privilege,  even  though  it  had  long  been 
the  custom  of  the  carrier  to  permit  reconsignment  without  tarifif 
authority.     (See  Ruling  77.) 

167.  A  PASSENGER  WRONGFULLY  DEPRIVED  OF 
THE  BENEFIT  OF  RETURN  COUPON  OF  A  ROUND- 
TRIP  EXCURSION  TICKET  MAY  HAVE  REPARATION. 
— A  passenger  holding  a  round-trip  ticket  on  the  certificate  plan, 
or  a  round-trip  ticket  requiring  validation,  was,  through  igno- 
rance or  fault  of  a  carrier's  agent,  deprived  of  the  benefit  of  the  re- 
duced fare  on  the  return  journey  and  was  compelled  to  purchase 
a  full-fare  ticket :  Held,  That  such  cases  are  analogous  to  the 
misrouting  of  freight  and  ought  to  be  adjusted  on  the  general 
principle  underlying  Rule  70  of  Tariff  Circular  15-A  (Ruling 
214  of  this  bulletin).  The  Commission,  therefore,  authorizes 
carriers  in  such  cases,  without  a  special  permissive  order,  to  re- 
fund to  the  passenger  the  difference  between  the  total  fare  paid 
by  him  and  the  reduced  rate  which  he  would  have  enjoyed  ex- 
cept for  the  carrier's  error;  and  the  carrier  at  fault  must  bear  the 
full  burden  without  recourse  upon  any  other  road  participating 
in  the  carriage.  (Reaffirming  Ruling  113.  See  also  Rulings  75, 
125,  247,  266,  and  277.) 

168.  EFFECT  OF  TRACKAGE  ARRANGEMENTS  UN- 
DER THE  ACT  TO  REGULATE  COMMERCE  WITH  RE- 
SPECT TO  SHIPMENTS  ROUTED  BY  SHIPPER.— The 
^Mineral  Point  &  Northern  Railway  Company  has  trackage  ar- 
rangements with  the  Chicago,  Milwaukee  &  St.  Paul  for  the  joint 
use  of  the  latter's  tracks  between  Highland  Junction  and  Mineral 
Point,  Wis.  L'pon  inquiry  from  the  general  manager  of  the  first- 
named  road  as  to  whether  the  St.  Paul  rightfully  may  refuse  to 
turn  shipments  over  to  it  at  Highland  Junction,  when  so  routed, 
and  retain  possession  of  the  revenue  for  the  haul  from  that  sta- 
tion to  ^Mineral  Point :  Held,  On  the  understanding  that  the  ship- 
ments in  either  case  would  be  delivered  at  the  same  warehouse 
and  at  the  same  rate,  that  under  the  act  to  regulate  commerce  no 
obligation  rests  on  the  Chicago,  ^lilwaukee  &  St.  Paul  to  turn 


Conference  Rulings.  831 

over   shipments   to   the   ^Mineral   Point   &   Northern   Railway   at 
Highland  Junction  for  transportation  to  Mineral  Point. 

169.  FREE  PASSES  TO  EMPLOYEES  OF  A  CAR- 
LIGHTING  COMPANY  UNLAWFUL.— Upon  inquiry  from 
a  car-lighting  company  it  was  Held,  That  its  experts  for  the  test- 
ing and  observation  of  the  performance  of  its  lights  on  trains  are 
not  employees  of  the  carrier,  and  are  not  therefore  entitled  to 
free  transportation.     (See  Ruling  95.) 

170.  IMPORTED  MERCHANDISE  NOT  ENTITLED 
TO  INLAND  PROPORTIONAL  RATE  WHEN  THE 
TRANSPORTATION  FROM  THE  PORT  IS  PURELY  LO- 
CAL.— An  importer  of  flax,  after  unloading  a  cargo  at  the  port, 
sold  it,  and  the  purchaser  some  months  later  sold  a  part  of  the 
original  shipment  to  a  manufacturing  company,  by  which  it  was 
shipped  to  a  point  in  the  Middle  West  at  the  regular  local  rate 
of  the  carrier  that  took  the  movement.  At  the  time  there  was  in' 
effect  an  inland  proportional  rate  from  the  port  to  destination : 
Held,  That  the  movement  from  the  port  was  a  separate  and  dis- 
tinct transaction  upon  which  the  local  rate  was  the  only  lawfully 
applicable  rate. 


May  4,  iQop. 

171.  FREE  TRANSPORTATION  TO  SHIPPERS  OF 
PERISHABLE  FREIGHT.— The  tariffs  of  a  carrier  included 
a  refrigeration  service,  under  rates  named  therein,  on  perishable 
freight.  Upon  inquiry  whether  the  shippers  or  their  agents 
might  have  free  transportation  to  inspect  the  reicing  of  the  cars : 
Held,  That  it  does  not  appear  that  they  are  necessary  caretakers' 
within  the  meaning  of  section  1  of  the  act.  (Compare  Ruling 
150.) 

172.  RATE  IN  EFFECT  ON  RECEIPT  OF  SHIPMENT 
IS  THE  LAWFUL  RATE.— Freight  was  received  by  a  carrier 
and  bills  of  lading  were  issued  therefor  on  December  21  and  29, 
1908.  The  freight  was  actually  moved  on  January  1,  1909,  on 
which  date  a  lower  rate  went  into  effect :  Held,  That  the  rate  in 
effect  on  the  date  the  carrier  received  the  property  for  transpor- 
tation is  the  lawful  rate. 


832  Conference  Rulings. 

173.  FREE  TRANSPORTATION  FOR  FAMILY  OF  DE- 
CEASED EMPLOYEE. — An  engineer  of  one  carrier  having 
ended  his  run  for  the  day  was  preparing  to  return  to  his  home 
over  another  hne  the  train  service  of  which  was  more  convenient. 
He  lost  his  Hfe  by  inadvertently  stepping  in  front  of  a  train  of 
this  carrier.  Upon  inquiry  whether  under  the  recent  amendment 
to  the  antipass  provision  of  section  1  free  transportation  might 
be  given  to  his  widow  and  children  by  the  road  by  which  he  had 
been  employed :  Held,  That  the  case  comes  within  the  spirit 
and  meaning  of  the  amendment.  ( The  amendment  referred  to 
is  in  the  act  of  April  13,  1908.    See  Rulings  18,  103,  and  193.) 

174.  FREE  TRANSPORTATION  OF  FAMILY  OF  EM- 
PLOYEE.— May  an  employee  use  free  transportation  for  the 
remains  of  his  wife  after  they  had  been  temporarily  interred? 
Held,  That  within  the  meaning  of  section  1  of  the  act  the  de- 
ceased wife  of  an  employee  may  be  regarded  as  a  member  of  his 

■family  until  given  permanent  burial.     (See  Ruling  95-c.) 

175.  CARLOAD  SHIPMENTS.— A  coffee  broker  pur- 
chased from  three  different  merchants  at  New  York  three  lots 
of  coffee  for  shipment  to  one  customer  as  one  carload.  The  three 
lots  were  delivered  to  the  carrier  under  circumstances  that  would 
have  entitled  them  to  go  to  destination  as  a  carload  shipment  had 
proper  instructions  been  given.  Because  of  the  failure  of  the 
shipper's  agent  to  give  sucli  instructions  the  three  lots  went  for- 
ward to  destination  as  three  shipments,  at  the  less-than-carload 
rate.  L'pon  inquiry  by  the  carrier  whether  it  might  assess  the 
carload  rate :  Held,  That  freight  charges  must  be  collected  on  the 
basis  of  the  less-than-carload  rate. 

176.  FREE  OR  REDUCED-RATE  TRANSPORTATION 
TO  AND  FROM  ENHIBITIONS.— Specimens  of  ore  that  are 
not  to  be  offered  for  sale  but  are  intended  exclusively  for  exhibi- 
tion at  the  Chamber  of  Alines  at  Los  Angeles  may  be  carried  free 
of  charge  or  at  reduced  rates,  under  section  22  of  the  act. 


May  10,  igog. 

111.  SIDE  TRIPS  NOT  SPECIFICALLY  SHOWN  IN  A 
THROUGH  TARIFF.— Modifving  conference  ruling  No.   148, 


Conference  Rulings.  833 

it  is  Held,  That  a  note  in  a  through  tariff  providing  that  pas- 
sengers purchasing  through  tickets  thereunder  shall  be  entitled 
to  such  side-trip  privileges  as  are  stated  in  the  individual  tariffs, 
on  file  with  the  Commission,  of  the  carriers  that  are  parties  to 
the  through  fare,  is  a  sufficient  compliance  with  the  requirements 
of  the  l^w  and  with  the  rules  of  the  Commission. 

178.  USE  OF  MILEAGE  TICKETS  IX  NEW  TERRI- 
TORY.— A  tariff  authorizes  the  sale  of  mileage  tickets  good  be- 
tween points  within  a  specified  limited  territory.  Subsequent  to 
the  date  upon  which  such  a  ticket  is  sold  and  prior  to  the  date  of 
its  expiration  the  tariff  is  amended  so  as  to  include  additional  ter- 
ritory. May"  such  mileage  ticket  be  thereafter  honored  for  trans- 
portation between  points  in  the  added  territory?  Held,  That  the 
terms  of  the  contract  of  original  sale  must  be  adhered  to  unless 
the  amendment  to  the  tariff  specifically  authorizes  honoring  out- 
standing tickets  between  points  in  the  added  territory. 

179.  TARIFFS  PROVIDING  FOR  TRANSPORTATION 
OF  CARETAKERS  IX  PASSENGER  CARS.— When  an  ex- 
press company  provides  in  its  tariff  for  free  trans])ortation  for 
caretakers  in  charge  of  live  stock,  poultry,  or  fruit,  and  the 
railroad  company  over  whose  lines  such  express  company  oper- 
ates provides  in  its  tariff  that  such  caretakers  may  be  permitted 
to  ride  in  passenger  cars,  the  tariff  of  the  express  company  and 
that  of  the  railroad  company  must  give  reference  to  each  other. 

180.  LESSEE  ROAD  NOT  SERVING  PUBLIC  AS  COM- 
MON CARRIER. — For  operating  purposes  only  a  carrier  leased 
20  miles  of  its  line  to  another  railroad  company.  The  contract 
rec]uired  the  lessee  for  an  agreed  compensation  to  be  ])aid  to  it 
by  the  lessor,  to  operate  the  lessor's  trains  and  to  maintain  its 
way,  tracks,  and  appurtenances,  the  rate  and  charges  to  l)e  col- 
lected by  the  lessor  and  the  lessee  to  have  no  direct  dealings  with 
the  public.  On  the  facts  as  stated  in  the  inquiry :  Held,  'i'hat  the 
lessor  must  puljlisli  the  rates,  fares,  and  charges,  and  the  lessee 
need  not  be  a  party  to  the  tariffs  nor  concur  therein,  but  is  simi)ly 
a  contractor  performing  certain  services  for  the  lessor.  ( Com- 
pare Ruling  229.) 


834  Conference  Rulings. 

Jtinc  /,  IQOQ. 

181.  SUBSTITUTIONS  OF  TONNAGE.— A  shipper  pro- 
posed a  tariff  rule  authorizing  carload  shipments  of  lime  originat- 
ing at  eastern  points  to  be  stopped  at  Omaha,  where  a  part  of  the 
contents  could  be  unloaded  and  an  equivalent  tonnage  of  cement 
or  plaster  substituted,  the  charges  to  final  destination  to  be  as- 
sessed in  accordance  with  the  rate  on  lime  from  the  original  point 
of  origin :  Held,  That  the  proposed  rule  would  'be  unlawful. 
(Withdrawn  February  10,  1913.) 

182.  SALE  OF  TICKETS  AFTER  DEPARTURE  OF 
LAST  TRAIN  ON  FINAL  SELLING  DATE.— Tariff  quot- 
ing passenger  fares  provides  that  tickets  shall  be  on  sale  between 
certain  specified  dates  and  that  they  shall  be  good  going  for  a 
specified  period,  including  the  date  of  sale.  Passenger  desiring  to 
take  advantage  of  such  fare  applied  for  such  ticket  on  the  last 
day  of  sale  and  after  the  last  train  for  the  day  had  departed  from 
that  station.  Agent  refused  to  issue  the  ticket  desired.  The  time 
limit  specified  in  the  tariff  was  sufficient  to  carry  passenger 
through  destination  within  that  limit  even  if  he  left  the  initial 
point  on  the  day  following  the  last  date  of  sale.  Tariff  did  not  re- 
quire that  journey  should  commence  on  date  of  sale  of  ticket : 
Held,  That  agent  should  have  issued  the  ticket  requested,  the  time 
limit  thereunder  being  sufficient  to  carry  passenger  through  to 
destination  by  his  starting  on  the  following  day  and  the  tariff 
containing  no  requirements  as  to  date  upon  which  journey  should 
begin:  Held  further,  That  if  tariff  had  provided  that  journey 
must  commence  on  the  day  of  sale  of  ticket,  agent  could  not  le- 
gally have  issued  such  ticket  after  the  last  train  for  the  day  had 
departed  on  the  last  date  of  sale. 

183.  RESERVATION  OF  RIGHT  TO  ROUTE  SHIP- 
MENTS.— The  following  rule  in  a  published  tariff  was  approved 
as  lawful,  subject  to  complaint  by  shippers: 

The  A.  &  B.  Railroad  Company  reserves  the  right  to  route 
through  to  destination  property  delivered  to  it  for  transportation 
at  the  through  rates  shown  in  this  tariff,  and  every  carrier  par- 
ticipating in  such  transportation  shall  have  the  right,  in  cases  of 
necessity,  to  forward  said  property  by  any  railroad  or  route  be- 
tween the  point  of  shipment  and  the  point  of  destination,  or  the 
point  to  which  the  rate  is  given;  but  if  such  diversion  shall  be 


Conference  Ruungs.  835 

from  a  rail  to  a  water  route,  the  liability  of  the  carrier  shall  be 
the  same  as  though  the  entire  carriage  were  by  rail.  (Compare 
Ruling  146.) 

184.  PERFORMANCE  OF  TRANSPORTATION  SERV- 
ICE WITHOUT  RATES  ON  FILE.— In  a  recent  prosecution 
instituted  by  the  Commission  of  a  carrier  for  engaging  in  trans- 
portation of  interstate  commerce  without  having  previously  filed 
with  the  Interstate  Commerce  Commission  lawful  tariffs  applica- 
ble thereto,  and  in  which  conviction  was  had  and  fine  of  $12,000 
was  assessed,  the  court,  speaking  through  Humphrey,  J.,  said : 

"It  thus  appears  not  only  that  the  performance  of  interstate 
transportation  by  a  carrier  which  has  neglected  to  file  and  pub- 
lish its  rates  and  charges  is  a  misdemeanor  under  the  act  to  regu- 
late commerce  and  under  the  Elkins  Act,  punishable  by  as  severe 
penalties  as  any  other  violation  of  these  acts,  but  it  also  appears 
that  the  requirement  for  filing  and  publication  of  the  rates  has 
been  in  the  act  to  regulate  commerce  ever  since  the  passage  of 
the  original  Cullom  bill,  and  that  its  importance  has  been  recog- 
nized by  the  Congress  by  successive  amendments  designed  to 
make  it  more  precise  and  its  violation  more  surely  and  more  se- 
verely punishable. 

"The  railroad  line  of  the  defendant  here  is  entirely  situated 
within  the  state  of  Illinois.  It  is  not  more  than  16  miles  in  length. 
It  is  really  no  more  than  a  switching  road  connecting  the  various 
railways  reaching  East  St.  Louis  and  Alton,  111.,  with  each  other 
and  with  various  industries  which  have  been  established  upon  its 
rails.  From  the  indictment  and  the  plea  thereto  it  appears,  how- 
ever, that  this  defendant  is  engaged  in  the  transportation  of  prop- 
erty moving  wholly  by  railroad  from  one  state  to  another  state. 
It  is,  therefore,  as  much  subject  to  the  act  as  though  it  owned 
and  operated  all  the  line  of  railroad  connecting  the  points  in  dif- 
ferent states  between  which  moved  the  commodities  mentioned 
in  the  indictment  C.  N.  O.  &  T.  P.  Ry.  v.  /.  C.  C,  162  U.  S..  184; 
L.  &  N.  R.  R.  V.  Behlmer,  175  U.  S.,  650;  U.  S.  v.  C.  &  N.  R.  R. 
Co.  (C.  C.  A.),  157  Fed.  Rep.,  321 ;  ^7.  S.  v.  Belt  Line  R.  R.  (C. 
C.  A.,  seventh  circuit,  October  term,  1908). 

"These  authorities  establish  that  the  law  regarding  ])ul)lication 
of  rates  and  charges  for  interstate  transjiortation  applies  with 
equal  force  to  all  carriers  engaging  in  such  interstate  transporta- 
tion, whether  such  carriers  operate  trains  from  one  state  to 
another  state  or  o])erate  entirely  within  the  boundaries  of  a 
single  state. 

"The  chief  object  of  the  act  to  regulate  commerce  is  the  pre- 
vention of  discrimination.     Carriers,  being  engaged  in  a  public 


836  Conference  Rulings. 

employment,  must  serve  all  members  of  the  public  on  equal  terms. 
This  was  the  doctrine  of  the  common  law.  It  has  been  explicitly 
stated  and  strengthened  by  the  successive  acts  to  regulate  com- 
merce. The  requirement  of  the  act  that  all  rates  should  be  pub- 
lished is  perhaps  the  chief  feature  of  the  scheme  provided  for  the 
effective  outlawing  of  all  discriminations.  If  this  portion  of  the 
act  is  not  strictly  enforced,  the  entire  basis  of  eft'ective  regulation 
will  be  lost.  Secret  rates  will  inevitably  become  discriminating 
rates.  Whenever  discriminating  rates  or  practices  are  made  pub- 
lic, a  thousand  forces  of  self-interest  and  of  public  policy  will  be 
set  at  work  to  reduce  them  to  fairness  and  equality.  The  failure 
of  any  carrier  to  properly  file  and  publish  its  rates  is  quite  as 
serious  a  violation  of  the  act  to  regulate  commerce  as  a  failure 
to  observe  such  rates  after  thev  have  been  properlv  filed  and  pub- 
lished."    (168  Fed.  Rep.,  545.) 

It  is  clearly  the  duty  of  the  Commission  to  strictly  enforce  the 
provision  of  the  law  referred  to,  and  it  may  confidently  be  ex- 
pected that  that  duty  will  be  performed.     (See  Ruling  194.) 

185.  FREE  OR  REDUCED  RATE  TRANSPORTATION 
TO  ^lUSEU^I  OF  NATURAL  HISTORY.— A  museum  of 
natural  history,  erected  in  a  public  park  by  private  subscription 
and  supported  partly  by  taxes  and  partly  by  the  income  of  funds 
contributed  by  citizens,  may  he  given  free  or  reduced  rate  trans- 
portation under  section  22  of  the  act  on  articles  intended  for  ex- 
hibition therein,  notwithstanding  the  fact  that  as  a  means  of  se- 
curing additional  income  it  charges  an  admission  fee  on  certain 
days  of  the  week,  admission  being  free  on  other  days.  (See  Rul- 
ing 245.) 


June  8.  igog. 

186.  LIABILITY  FOR  ^IISROUTING.— Before  delivering 
his  merchandise  to  a  carrier,  a  shipper  was  quoted  a  rate  of  16 
cents  via  all  available  routes  between  the  points  of  origin  and 
destination.  Bills  of  lading  were  issued  showing  that  rate  and, 
at  the  shipper's  request,  also  showing  routing  via  a  named  junc- 
tion. Before  delivery  was  made  at  destination  it  was  discovered 
that  the  16-cent  rate  did  not  apply  over  that  route,  and  the  de- 
livering carrier  therefore  assessed  the  sum  of  the  locals  through 
that  junction,  amounting  to  65  cents  per  100  pounds.  Held,  That 
as  the  rate  quoted  was  inserted  in  the  bill  of  lading,  shipment 
ought  to  have  been  moved  over  a  route  carrying  that  rate.  (See 
Ruling  159;  amended  by  Ruling  286-/.) 


Conference;  Rulings.  837 

187.  INTERPRETATION  OF  CONFERENCE  RULING 
NO.  3. — The  case  upon  which  this  ruling  was  made  was  one 
where  freight  charges  were  collectible  from  the  consignee.  To 
give  it  general  application,  the  words  "from  consignees"  are  now 
stricken  from  the  rule,  so  that  it  will  read : 

CoLivECTiON  OF  UNDERCHARGES. — The  Commission  adheres  to 
its  previous  ruling  that  carriers  must  exhaust  their  legal  remedies 
to  collect  undercharges. 

(Superseded  by  Ruling  314.     Compare  Rulings  16  and  156.) 


June  14,  igog. 

188.  RATES  BASED  ON  DECLARED  VALUATION.— 
The  agent  of  a  shipper  not  knowing  the  value  of  a  dog  to  be  sent 
by  express,  nevertheless  named  a  valuation  of  $500,  and  the  re- 
sulting charges  to  destination  amounted  to  $45.  The  dog  was 
actually  worth  $15,  and  at  this  valuation  the  express  charges 
would  have  been  $8.  The  consignee  declined  to  accept  delivery 
and  pay  the  charges  demanded.  Upon  inquiry  whether  charges 
may  be  collected  on  the  basis  of  the  actual  value  of  the  dog,  it 
was  Held,  That  the  shipper  is  responsible  for  the  act  of  his  agent 
and  that  the  charges  at  the  valuation  given  must  be  collected. 

189.  RETURN  OF  CARETAKERS.— A  shipment  of  live 
stock  moved  between  two  points  over  two  connecting  lines. 
Upon  inquiry  by  the  delivering  road,  which  had  a  through  direct 
line  between  the  two  points,  it  was  Held,  That  it  can  not  free  of 
charge  return  the  caretakers  over  its  own  direct  line  through  to 
the  point  of  origin  of  the  shipment. 

190.  IN  THE  ABSENCE  OF  INSTRUCTIONS  INITIAL 
CARRIER  NOT  REQUIRED  TO  ROUTE  VIA  RAIL  AND 
WATER.— Rule  70  of  Tariff  Circular  No.  15-A  (Ruling  214  of 
this  Bulletin)  contemplates  that  where  rail-and-water  and  all-rail 
rates  are  available  for  a  shipment  the  shipper  shall  designate 
which  class  of  routing  he  desires  and  that  the  agent  of  the  carrier 
shall  secure  such  designation  from  the  shipper. 

A  shipment  was  delivered  to  a  rail  carrier  destined  to  a  i)oint 
to  which  it  might  be  forwarded  via  either  all-rail  or  rail-lake- 
and-rail  route.  No  class  of  route  was  designated  by  the  shipper. 
Shipment  was  forwarded  all  rail :  Held,  That  taking  into  consid- 
eration the  liabilities  of  carriers  and  the  question  of  marine  insur- 


838  Conference  Rulings. 

ance  upon  water-borne  traffic,  the  carrier's  agent  did  not  negli- 
gently misroute  this  shipment.  (Interpreted  in  Ruling  284;  see 
also  Ruling  316.) 

191.  CAR-SERVICE  CHARGES  ON  TRAFFIC  FRO^J 
AXD  TO  CANADA. — With  respect  to  traffic  between  points  in 
Canada  and  points  in  the  United  States,  the  Commission  does  not 
waive  the  requirement  that  carriers  shall  file  tariffs  showing  their 
terminal  charges  and  that  such  charges  must  either  appear  spe- 
cifically in  the  tariffs  naming  the  rates  or  the  tariff's  establishing 
such  charges  must  be  specifically  referred  to  in  the  tariffs  naming 
the  rates. 

192.  INTERPRETATION  OF  AMENDED  RULE  70  OF 
TARIFF  CIRCULAR  15-A.— The  amendment  of  April  6,  1909, 
to  Rule  70  of  Tariff  Circular  No.  15-A  (Ruling  214-/  of  this 
Bulletin)  is  to  be  regarded  merely  as  an  application  of  the  prin- 
ciple of  the  original  ruling  to  cases  based  on  the  state  of  facts 
presented  in  the  amendment,  and  carriers  may  settle  all  such 
claims  arising  after  March  18,  1907,  under  the  authority  of  the 
original  ruling  without  'bringing  them  to  the  Commission,  the 
carrier  at  fault  to  bear  the  entire  burden  of  the  refund  without 
recourse  on  its  connections  for  any  part  thereof.  (Amended  by 
Ruling  286.) 

193.  FREE  TRANSPORTATION  OF  REMAINS  OF 
DECEASED  EMPLOYEE  AND  FAMILY  ACCOMPANY- 
ING SAME. — It  is  the  view  of  the  Commission  that  the  spirit 
and  meaning  of  the  law  with  relation  to  free  passes  for  employ- 
ees and  their  families  will  not  be  violated  if,  in  the  case  of  the 
death  of  an  employee  while  in  the  service  of  a  carrier,  free  trans- 
portation be  given  to  his  remains  and  to  members  of  his  family 
who  might  lawfully  use  free  transportation,  if  he  were  still  alive, 
to  the  place  of  interment  and  return  to  their  homes.  (See  Rul- 
ings 18,  103.  and  173.) 

Note. — By  the  amendatory  act  of  June  18,  1910,  provision  is  made 
for  free  transportation  to  widows  and  orphans  of  deceased  em- 
ployees, the  former  during  widowhood,   the  latter  during  minority. 

194.  REFUND  DENIED  OF  DEMURRAGE  COLLECTED 
UNDER  TARIFF  NOT  ON  FILE.— The  Commission  will  not 
entertain  with   favor  claims   for  refund  of   demurrage  charges, 


Conference  Rueings.  839 

collected  in  accordance  with  a  carrier's  established  practice,  solelv 
upon  the  ground  that  the  demurrage  tariffs  were  not  on  file  with 
the  Commission  at  the  time  the  demurrage  charges  accrued.  The 
failure  to  file  demurrage  tariffs  constitutes  a  violation  of  the  act. 
with  which  the  Commission  will  deal  through  the  Division  of 
Prosecutions.     (See  Ruling  184.) 

195.  APPLICATION  OF  COMBINATION  RATES  ON 
FREIGHT  ^lOVING  THROUGH  ANOTHER  JUNCTION. 
— The  conference  ruling  of  June  14,  1909,  under  this  caption 
was  rescinded  on  November  24,  1909.  Amended  Rule  5,  Tariff" 
Circular  No.  18-A,  covers  and  governs  the  subject. 

196.  INTERCHANGE  OF  FREE  TRANSPORTATION 
FOR  EAIPLOYEES  OF  WATER  LINES.— When  a  common 
carrier  by  water,  other  than  an  ocean  carrier,  not  subject  to  the 
act,  unites  with  a  carrier  by  rail  for  the  interstate  transportation 
of  passengers,  partly  by  water  and  partly  by  rail,  under  a  com- 
mon control,  management,  or  arrangement  for  a  continuous  car- 
riage shown  by  concurrence  in  tariff'  or  tariffs  duly  published  and 
filed  with  the  Commission,  such  carriers  can  lawfully  interchange 
transportation  for  their  officers,  agents,  and  employees.  (Reaf- 
firming Ruling  9S-g.) 


June  21,  igoQ. 

197.  CARRIERS  SUBJECT  TO  THE  ACT.— A  railroad 
not  otherwise  subject  to  the  act  subjects  itself  to  the  jurisdiction 
of  the  Commission  and  the  provisions  of  the  act  if  it  transports 
express  matter  for  an  express  company  that  is  subject  to  the  act. 
(See  Ruling  368.) 


June  22,  igoQ. 

198.  INTERPRETATION  OF  RULE  70,  TARIFF  CIR- 
CULAR NO.  LS-A  (Ruling  214  of  this  Bulletin).— Under  this 
rule  any  carrier,  whether  it  be  the  initial  or  a  connecting  line, 
that  misroutes  a  shipment,  thereby  causing  additional  transporta- 
tion charges,  may,  upon  admitting  its  error,  ])ay  the  damages  aris- 
ing therefrom,  provided  the  whole  burden  is  borne  by  it  without 
participation  therein  by  its  connections.  Ikit  the  admission  must 
be  in  good  faith  with  respect  to  the  particular  case  of  misrout- 
in.g;  the  Commission  will  not  recognize  the  validity  of  any  gen- 


840  Conference  Rulings. 

eral  agreement  between  two  or  more  carriers  by  which  one  as- 
sumes responsibility  for  misrouting  in  all  cases. 

199.  RESPOXSIBILITY  FOR  MISROUTIXG.— When  a 
shipper  has  given  routing  instiLictions  which  a  carrier  fails  to 
transmit  to  its  connection,  the  carrier  so  failing  shall  be  responsi- 
ble for  all  additional  transportation  charges  resulting  from  a 
misrouting  of  the  shipment.     (Amended  by  Ruling  286-c.) 

200.  REPARATION  CLAIMS  OX  THE  IXFORAIAL 
DOCKET. —  (a)  At  a  recent  conference  between  the  Commis- 
sion and  representatives  of  a  number  of  carriers  the  embarrass- 
ments arising  through  the  tying  up  of  rate  schedules  under  the 
one-year  clause  customarily  inserted  in  informal  reparation  or- 
ders were  fully  considered,  and  the  discussion  that  then  took 
place  as  well  as  our  subsequent  reflections  upon  the  matter,  have 
led  us  to  the  conclusion  that  some  modifications  of  our  practice 
in  that  regard  may  be  made  in  certain  cases  to  advantage  and 
without  impairing  the  effectiveness  of  the  law.  We  have  there- 
fore agreed  upon  the  following  rules  which  we  think  will  afford 
some  relief  in  the  premises : 

1.  In  cases  where  the  through  rate  in  eft'ect  at  the  time  of  the 
shipment  was  in  excess  of  the  sum  of  the  local  rates  the  order, 
instead  of  requiring  the  maintenance  of  an  absolute  rate  for  one 
year  from  the  date  of  the  filing  of  the  application,  shall  require 
the  absolute  rate  to  be  maintained  for  a  period  of  only  six  months 
from  the  date  upon  which  the  reduced  through  rate  equaling  the 
sum  of  the  locals  became  eft'ective ;  this  rule  shall  apply,  how- 
ever, only  in  cases  where  the  local  rates  in  question  are  to  and 
from  some  well-recognized  and  established  basing  point  or  line, 
such  as  the  ^^lississippi,  Missouri,  and  Ohio  rivers,  Chicago, 
Minnesota  Transfer,  Buft"alo,  etc.  In  all  other  cases  the  present 
practice  shall  be  enforced.     (Modified  by  Ruling  376.) 

2.  Where  there  is  a  natural  geographical  relation  between  the 
point  involved  and  other  points,  which  relation  the  carrier  has 
theretofore  expressed  in  its  tariffs  by  grouping  that  point  with 
the  other  points,  either  with  respect  to  rates  on  the  commodity  in 
question,  or  with  respect  to  rates  on  other  commodities,  or  with 
respect  to  class  rates,  the  order  may  recjuire  the  maintenance  of 
the  group  relation  for  one  year  from  the  date  of  the  application 


Conference  Ruungs.  841 

instead  of  requiring  an  absolute  rate  to  or  from  the  point  in  ques- 
tion. 

3.  Where  the  rates  on  a  product  of  a  raw  material  have  had  a 
definite  relation  to  the  rates  on  the  raw  material,  and  that  relation 
has  been  temporarily  disturbed  and  subsequently  restored,  the 
order  may  control  the  relation  for  one  year  instead  of  fixing  an 
absolute  rate  on  the  product. 

4.  Where  a  carrier  is  compelled  to  charge  a  higher  rate  than 
was  intended  because  of  an  error  in  printing  a  tarifl:',  the  one- 
year  clause  may  be  omitted  only  where  the  error  is  specifically 
called  to  the  attention  of  the  Commission  within  ninety  days  after 
the  tarifif  containing  the  error  has  been  filed. 

(b)  Because  of  the  uncertain  condition  of  the  tariffs  of  car- 
riers the  Commission  has  been  rather  liberal  in  the  past  in  the 
conduct  of  its  special  reparation  docket  and  proposes,  in  order 
to  help  carriers  dispose  of  claims  that  have  accumulated  in  the 
past,  to  continue  this  policy  for  the  present.  It  is  manifest,  how- 
ever, that  the  time  is  approaching  when  in  the  general  interest 
of  all  concerned  the  Commission  must  adopt  a  dift'erent  attitude. 
We  take  occasion  therefore  now  to  say  that  the  Commission  will 
cooperate  with  carriers,  so  far  as  that  may  legally  be  possible,  in 
the  effort  to  get  all  old  claims  disposed  of,  and,  with  respect  to 
shipments  made  prior  to  September  1  next,  will  pursue  its  present 
policy  of  liberality.  But  with  respect  to  shipments  moving  on 
and  after  that  date  the  Commission  will  draw  the  lines  much 
more  closely,  and  will  adopt  such  measures  as  will  materially  nar- 
row the  scope  of  its  activities  in  that  connection.  We  are  not 
prepared  at  this  time  to  define  in  detail  what  our  policy  in  the 
future  will  be.  It  may  be  well,  however,  now  to  say  that  after  that 
date  we  shall  not  award  reparation,  either  on  the  formal  or  the  spe- 
cial docket,  in  any  case  where  the  carrier  in  question  has  reduced 
a  rate  simply  in  order  to  meet  the  lower  rate  of  a  competitor. 
Any  other  course  of  action  not  only  deprives  the  competitor 
of  the  natural  benefit  of  its  lower  rate,  but  tends  to  destroy  the 
inducements  for  making  a  lower  rate.  Moreover,  any  other 
course  of  action  is  demoralizing,  in  that  it  enables  the  carrier, 
before  its  own  lower  rate  has  become  effective,  to  assure  ship- 
pers that  they  may  ship  by  its  line  notwithstanding  its  higher  rate 
and  afterwards  secure  reparation  on  the  basis  of  the  lower  rate 


842  Confe;rEnce;  Rulings. 

of  its  competitor.  Where  there  is  a  difference  in  rates  between 
two  points  over  different  lines,  shippers  must  understand  that 
they  may  get  the  benefit  of  the  lower  rate  only  by  sending  their 
merchandise  over  the  line  publishing  the  lower  rate.  (See  Rul- 
ing 205.) 

(c)  It  may  be  well  also  to  announce  that  it  has  been  suggested 
that  when  reparation  is  granted  to  a  complainant,  either  in  a 
formal  or  an  informal  proceeding,  on  a  finding  that  the  rate  un- 
der which  his  shipment  moved  was  excessive  and  therefore  un- 
lawful, the  spirit  of  the  law  requires  that  the  order  ought  also  to 
compel  the  carrier  to  make  a  refund  on  the  same  basis  on  all  other 
shipments,  moving  after  the  date  of  the  filing  of  any  such  com- 
plaint, under  the  rate  thus  condemned.  While  no  conclusion  has 
been  reached  there  is  force  in  this  view  and  it  will  have  further 
consideration.     (See  Ruling  49;  amended  by  Ruling  220-d.) 

(d)  The  suggestions  that  have  come  to  us  from  various  quar- 
ters in  relation  to  the  conduct  of  the  special  reparation  docket 
indicate  that  some  misapprehension  exists  as  to  the  purpose  of 
that  docket,  and  as  to  the  authority  of  the  Commission  in  deal- 
ing with  such  cases.  It  may  be  well,  therefore,  to  say  that  our 
action  in  special  reparation  cases  has  no  authority  in  law  except 
the  authority  upon  which  we  take  similar  action  in  formal  cases. 
In  all  cases,  whether  on  the  formal  or  the  special  docket,  the  law 
in  section  15  specifically  requires  a  complaint  and  answer  and  a 
full  hearing;  and  in  section  14  it  is  provided  that  where  damages 
are  awarded  the  report  of  the  Commission  shall  include  the  find- 
ings of  the  fact  on  which  the  award  is  made.  We  have  en- 
deavored to  simplify  the  procedure  on  the  special  docket  by  ac- 
cepting the  application  of  the  carrier  as  the  equivalent  of  a  com- 
plaint and  answer,  and  by  accepting  its  admission  that  the  rate 
charged  under  the  circumstances  then  existing  was  unreasonable 
as  a  sufficient  compliance  with  the  requirements  of  section  15  for 
a  full  hearing.  The  informality  in  the  pleadings  in  sucl|  cases 
seems  to  have  led  some  carriers  as  well  as  shippers  into  the  error 
of  supposing  that  special  reparation  cases  can  be  disposed  of 
still  more  informally.  This,  however,  is  a  mistaken  view  of  our 
authority.  The  special  docket  is  not  an  informal  docket  in  any 
sense  except  in  respect  to  the  form  of  the  pleadings  and  the  char- 
acter of  the  hearing.  Our  orders  in  such  cases  must  be  regarded 
as  formal  orders  as  fully  in  all  respects  as  our  orders  in  formal 


Conference  Rulings.  843 

cases.  The  Commission  can  exercise  no  authority  on  the  in- 
formal docket  that  it  can  not  exercise  on  the  formal  docket,  nor 
may  it  omit  any  requirement  with  respect  to  cases  on  the  special 
docket  that  the  law  imposes  upon  us  in  the  disposition  of  cases 
on  the  formal  docket.     (See  Rulings  14  and  220.) 


June  22,  ipog. 

201.  JOINT  THROUGH  RATES  TO  AND  FROM 
PORTO  RICAN  PORTS.— Without  at  this  time  deciding 
whether  Porto  Rico  is  to  be  regarded  as  a  Territory  of  the  United 
States  as  that  phrase  is  used  in  section  1  of  the  act,  the  Commis- 
sion will  recognize  the  validity  of  joint  through  rates  from  or  to 
points  in  the  United  States  to  or  from  a  port  or  ports  in  Porto 
Rico  when  properly  concurred  in  by  the  water  carriers.  (See 
Ruling  155.) 


June  24,  I  pop. 

202.  DISTANCE  TARIFFS  TO  SHOW  DISTANCE  BE- 
TWEEN STATIONS.— Where  rates  are  stated  in  a  tariff  at  so 
much  per  mile,  or  according  to  distance,  that  tariff,  or  some  tariff' 
specifically  referred  to  therein,  must  show  the  distance  between 
the  stations  between  which  such  rates  are  to  be  applied.  For  the 
present  the  Commission  will  not  apply  this  rule  to  ordinary  mile- 
age tickets  or  books  for  passenger  travel. 


June  2p,  I  pop. 

203.  SUBSTITUTION  OF  TONNAGE  IN  TRANSIT 
(cancels  Ruling  85). — A  milling,  storage,  or  cleaning-in-transit 
privilege  can  not  be  justified  on  any  theory  except  that  the  iden- 
tical commodity  or  its  exact  equivalent,  or  its  product,  is  finally 
forwarded  from  the  transit  point  under  the  application  of  the 
through  rate  from  original  point  of  shipment.  It  is  therefore 
not  permissible  at  transit  point  to  forward  on  transit  rate  com- 
modity that  did  not  move  into  transit  point  on  transit  rate,  or 
to  substitute  a  commodity  originating  in  one  territory  for  the 
same  or  like  commodity  moving  into  transit  point  from  another 
territory,  or  to  make  any  substitution  that  would  impair  the  in- 
tegrity of  the  through  rate.  It  is  not  practicable  to  require  that 
the  identity  of  each  carload  of  grain,  lumber,  salt,  etc.,  be  pre- 


844  Conference  Rulings. 

served,  but,  in  the  opinion  of  the  Commission,  it  is  not  possible 
to  lawfully  substitute  at  the  transit  point  any  commodity  of  a 
different  kind  from  that  which  has  moved  into  such  transit  point. 
That  is  to  say,  oats  or  the  products  of  oats  may  not  be  substituted 
for  corn,  corn  or  the  products  of  corn  for  wheat,  nor  wheat  or 
the  products  of  wheat  for  barley,  nor  may  shingles  be  substituted 
for  lumber,  or  lumber  for  shingles,  nor  may  rock  salt  be  sub- 
stituted for  fine  salt,  nor  fine  salt  for  rock  salt ;  likewise  oak  lum- 
ber may  not  be  substituted  for  maple  lumber,  nor  pine  lumber 
for  either  oak  or  maple,  nor  may  hard  wheat,  soft  wheat,  or 
spring  wheat  be  substituted  either  for  the  other.  These  illustra- 
tions are  given  not  as  covering  the  entire  field  of  possible  abuses, 
but  as  indicating  the  view  which  the  Commission  will  take  of 
such  abuses  as  they  arise.     (Reaffirming  Ruling  181.) 

To  the  end  that  abuses  now  existing  at  transit  points  may  be 
eliminated,  carriers  \vill  be  expected  to  conform  their  transit  rules 
and  their  billing  to  the  suggestions  of  this  rule.  In  the  event  of 
the  failure  of  any  carrier  so  to  do,  reductions  of  legal  rates 
caused  by  transit  abuses  will  be  regarded  as  voluntary  conces- 
sions from  legal  rates.     (Withdrawn  February  10,  1913.) 

204.  TRANSIT  PRIMLEGES.— It  is  the  sense  of  the  Com- 
mission that  no  transit  privilege  should  extend  beyond  one  year. 
(Qualified  by  Ruling  232.) 

205.  LIABILITY  FOR  ^IISROUTIXG.— An  initial  carrier 
misrouted  a  shipment,  resulting  in  additional  transportation 
charges,  for  which  it  admitted  its  responsibility  and  made  settle- 
ment in  accordance  with  Rule  70  of  Tarifif  Circular  Xo.  15-A  (Rul- 
ing 214  of  this  bulletin).  Subsequently  the  connecting  line  over 
which  the  shipment  moved  became  a  party  to  a  tarifif  naming 
the  same  rate  that  applied  at  the  time  of  the  movement  over  an- 
other route.  Thereupon  the  initial  carrier  and  the  connecting 
line  requested  permission  to  divide  the  misrouting  overcharge: 
Held,  That  the  petition  must  be  denied  on  the  ground  that  such 
a  course  would  amount  to  the  retroactive  application  of  a  pub- 
lished rate.     ( See  Rulings  200  and  220-11.) 


1 


July  2,  igog. 

206.  PROCEDURE  IN  FORMAL  CASES.— (a)  Complaints 
which  involve  the  same  or  substantially  the  same  principle,  sub- 


Conference  RuuNub.  845 

ject,  or  state  of  facts,  even  though  two  or  more  rates  or  regula- 
tions are  alleged  to  be  unreasonable  or  discriminatory  and  nu- 
merous shipments  are  affected  thereby  should  be  included  in  one 
complaint,  in  which  the  several  rates,  regulations,  discriminations, 
and  shipments  are  set  out  in  items,  exhibits,  or  paragraphs.  Two 
or  more  complainants  may  join  in  one  complaint  against  one  or 
more  carriers,  and  one  complainant's  complaints  against  two  or 
more  carriers  may  be  included  in  one  complaint,  when  the  subject 
of  complaint,  the  principle  involved,  or  the  state  of  facts  is  sub- 
stantially the  same.  In  other  words,  two  or  more  complaints 
should  not  be  filed  when  one  complaint  can  be  made  fairly  to 
cover  the  subject,  the  principle,  or  the  facts. 

(b)  If  one  complainant  or  two  or  more  complainants  file  sepa- 
rate complaints  which  rest  upon  the  same  principle  or  upon  the 
same  or  a  substantially  similar  state  of  facts,  the  Commission 
will,  in  its  discretion,  consolidate  the  several  complaints  into 
one  case,  under  one  number  and  title,  so  that  the  same  may  be 
disposed  of  in  one  hearing  and  in  one  report. 

(c)  Reparation  will  not  ordinarily  be  awarded  in  a  formal  case 
attacking  a  rate  as  unreasonable  or  otherwise  in  violation  of  law 
unless  intent  to  claim  reparation  is  specifically  disclosed  therein, 
or  in  an  amendment  thereto,  filed  before  the  submission  of  said 
case.  The  Commission  may,  however,  in  the  exercise  of  its  dis- 
cretion, upon  good  cause  shown,  and  under  unusual  circumstances, 
deal  specially  with  a  particular  claim  for  reparation. 

(d)  Claims  for  reparation  based  upon  a  decision  of  the  Com- 
mission filed  by  complainants  not  parties  to  the  case  in  which 
such  decision  was  rendered  will  not  ordinarily  be  allowed  unless 
reparation  was  claimed  in  the  complaint  upon  which  such 
decision  of  the  Commission  was  based,  or  was  awarded  by 
the  Commission.  The  Commission  may,  however,  in  the  exer- 
cise of  its  discretion,  upon  good  cause  shown,  and  under  unusual 
circumstances,  specially  consider  a  ^rticular  claim  for  repara- 
tion of  this  class. 

(e)  Complaints  for  reparation  must  disclose  as  nearly  as  pos- 
sible all  the  claims  of  complainant  or  complainants  covered  by 
or  involved  in  the  complaint,  except  that  when  a  general  rate 
adjustment  or  a  rate  under  which  many  shipments  have  been 
made  to  many  destinations,  or  from  many  points  of  origin  by 


846  CoNFiiiRENCE  Rulings. 

many  shippers,  is  involved,  complaint  may  contain  specific  prayer 
for  reparation  on  all  shipments,  and  the  proving  up  as  to  shipments 
and  amounts  of  reparation  due  thereon  be  left  until  the  questions 
of  the  reasonableness  of  the  rate  or  rates  and  whether  or  not 
reparation  will  be  awarded,  have  been  decided.  And  each  claim- 
ant for  reparation  under  a  decision  that  has  been  rendered  must 
include  all  his  shipments  and  claims  in  one  complaint  or  state- 
ment. 


September  75,  /pod. 

207.  PAYMENT     FOR    TRANSPORTATION.— Nothing 

but  money  can  be  lawfully  received  or  accepted  in  payment  for 
transportation  subject  to  the  act,  whether  of  passengers  or 
property,  or  for  any  service  in  connection  therewith,  it  being 
the  opinion  of  the  Commission  that  the  prohibition  against 
charging  or  collecting  a  greater  or  less  or  different  compensa- 
tion than  the  established*  rates  or  fares  in  effect  at  the  time, 
precludes  the  acceptance  of  services,  property  or  other  payment 
in  lieu  of  the  amount  of  money  specified  in  the  published  sched- 
ules. 


October  12,   1Q06. 

208.  FREE  PASSES  AND  FREE  TRANSPORTATION. 
—  (a)  The  provisions  of  the  act  relative  to  the  issuance  of  free 
tickets,  free  passes,  free  transportation,  or  free  carriage  to 
employees  of  carriers  apply  only  to  persons  who  are  actually 
in  the  service  of  the  carriers  and  who  devote  substantially  all 
of  their  time  to  the  work  or  business  of  such  carriers.  Land 
and  immigration  agents  unless  they  are  bona  fide  and  actual 
employees,  representatives  of  correspondence  schools,  agents  of 
accident  or  life  insurance  companies,  agents  of  oil  or  lubricat- 
ing companies,  etc.,  are  not  within  the  classes  to  which  free  or 
reduced- fare  transportation  can  be  lawfully  furnished.  (See 
Rulings  9.=;  and  308.) 

(b)  But  the  Commission  does  not  construe  the  law  as  pre- 
venting a  carrier  from  giving  necessary  free  transportation  to 
a  person  traveling  over  its  line  solely  for  the  purpose  of  at- 
tending to  the  business  of  or  performing  a  duty  imposed  upon 
the  carrier,  nor  from  giving  free  carriage  over  its  line  to  the 


Conference  Ruungs.  847 

household  and  personal  effects  of  an  employee  who  is  required 
to  remove  from  one  place  to  another  at  the  instance  of  or  in 
the  interest  of  the  carrier  by  which  he  is  employed.  (  See  Rul- 
ings 109,  134,  255,  and  361.) 

(c)  Nor  does  the  Commission  construe  the  law  as  prevent- 
ing a  carrier  from  giving  free  or  reduced-rate  carriage  over  its 
line  to  contractors  for  material,  supplies,  and  men  for  use  in 
construction,  improvement,  or  renewal  work  on  the  line  of  that 
carrier,  provided  such  arrangements  for  free  or  reduced-rate 
carriage  are  made  a  part  of  the  specifications  upon  which  the 
contract  is  based  and  of  the  contract  itself.     (See  Ruling  386.) 

(d)  The  provisions  of  the  act  relative  to  the  issuance  of  free 
or  reduced-fare  transportation  to  ministers  of  religion  do  not 
apply  to  or  include  members  of  the  families  of  ministers  of 
religion.  Neither  do  the  provisions  of  the  act  relative  to  the 
issuance  of  free  or  reduced-fare  transportation  admit  of  includ- 
ing therein  officers  of  the  Government,  the  army,  or  the  navy, 
or  members  of  their  families,  or  other  persons  to  whom  such 
considerations  may  have  been  extended  in  the  past,  unless  they 
are  within   the  classes  specifically   named  in  the  act. 

Reduced  rate  or  fare  transportation  may  be  granted  to  such 
persons  as  are  specified  in  the  law  as  those  to  whom  free  trans- 
portation may  be  given.      (See  Ruling  95.) 

(e)  Section  22  of  the  act  authorizes  carriers  to  grant  free  or 
reduced-rate  transportation  of  property  for  the  United  States, 
state,  or  municipal  governments,  or  for  charitable-  purposes  or 
for  exhibition  at  fairs  and  expositions.  It  also  authorizes  free 
or  reduced-fare  transportation  of  certain  specified  persons. 
This  special  provision  and  the  words  "reduced  rates"  are 
construed  to  be  special  authority  for  carriers  to  depart  from 
established  tariff  rates  or  fares ;  and  for  such  transportation 
as  is  provided  for  in  said  section  22  it  is  not  necessary  for  car- 
riers to  provide  tariffs  or  observe  tariff  rates  or  fares  and  reg- 
ulations excepting  in  the  issuance,  sale,  and  use  of  mileage,  ex- 
cursion, or  commutation  passenger  tickets,  and  joint  interchange- 
able mileage  tickets.  As  to  these,  the  provisions  of  section  6 
with  regard  to  publishing,  filing,  posting,  and  observing  tariffs 
must  be  complied  with.  (See  Rulings  33,  36,  65,  218,  244,  297, 
and  311;    compare  Ruling  107.) 


848  Conference  Rulings. 

November  i6,  igo6. 

209.  DIVISION  OF  JOINT  RATES  OR  FARES— CON- 
TRACTS AND  AGREEMENTS  FOR,  MUST  BE  FILED.— 
A  contract,  agreement,  or  arrangement  between  common  car- 
riers, governing  the  division  between  them  of  joint  rates  or 
fares  on  interstate  business,  is  a  contract,  agreement,  or  ar- 
rangement in  relation  to  traffic  within  the  meaning  of  section  6 
of  tlie  act  to  regulate  commerce,  and  a  copy  thereof  must  be 
filed  with  the  Commission.  Where  such  contract,  agreement,  or 
arrangement  is  verbal,  or  is  contained  in  correspondence  between 
the  parties,  or  rests  on  their  custom  and  practice,  a  memorandum 
of  its  terms  must  be  filed  with  the  Commission. 

\Mien  the  agreement  or  arrangement  under  which  divisions  are 
made  is  in  the  form  of  a  contract  or  formal  agreement  or 
recorded  memorandum,  a  copy  of  each  such  contract,  agree- 
ment, or  memorandum  is  to  be  filed  with  the  Commission.  Where 
such  arrangement  is  made  by  correspondence  or  verbally,  a  con- 
cise memorandum  of  the  basis  and  general  terms  and  applica- 
tion of  the  arrangement  or  practice  is  to  be  filed  with  the  Com- 
mission. The  filing  of  the  division  sheets  themselves  is  not 
desired.     (See  Ruling  269.) 

210.  CORRESPONDENCE  WTTH  COMMISSION  ON 
FREIGHT  AND  PASSENGER  MATTERS.— It  is  believed 
that  the  best  results  and  understandings  will  be  reached  if  the 
conducting  of  ordinary  correspondence  between  carriers  and  the 
Commission  is  confined  to  as  few  persons  as  possible.  Request 
is  therefore  made  that  the  traffic  manager  or  the  general  pas- 
senger and  general  freight  agents  of  each  road  designate  not 
more  than  two  officials  or  other  representatives  to  respectively 
conduct  the  correspondence  with  the  Commission  on  freight  and 
passenger  matters,  and  to  promptly  advise  the  Commission  of 
such  appointments. 

211.  DISTRIBUTION  OF  OFFICIAL  CIRCULARS  AND 
RULINGS. — It  is  obviously  impracticable  for  the  Commission 
to  place  copies  of  its  official  circulars  and  rulings  in  the  hands 
of  all  the  officers  of  carriers  or  to  furnish  copies  for  distribu- 
tion among  them.  The  officers  at  the  head  of  traffic  depart- 
ments, or  in  charge  of  the  passenger  and  freight  departments, 
respectively,  will  please  designate  for  each  road  one  official  in 


1 


I 


CoNFiiRENCE  Rulings.  849 

the  passenger  department  and  one  in  the  freight  department 
(unless  both  are  under  one  head  officer  and  one  appointment  is 
considered  sufficient),  to  whom  such  circulars  and  rulings  are 
to  be  sent ;  and  arrange  for  such  designated  officials  to  dissem- 
inate the  information  among  other  interested  officers  and  agents. 
Please  report  these  appointments  to  the  Commission  as  early  as 
possible. 

With  the  view  of  giving  prompt  information  to  those  who 
may  be  interested,  the  Commission  will  upon  application  place 
upon  its  mailing  list  regularly  organized  boards  of  trade,  cham- 
bers of  commerce,  commercial  clubs,  and  shippers'  associations, 
for  the  purpose  of  mailing  to  them  copies  of  official  circulars 
containing  rulings  and  orders  of  the  Commission. 


January  21,  igo"/. 

212.  TRANSPORTATION  OF  NEWSPAPER  EMPLOY- 
EES ON  SPECIAL  NEWSPAPER  TRAINS.— In  its  decision 
of  January  21,  1907,  on  the  petition  of  certain  newspapers  in  New 
York  City,  the  Commission  decided  that  a  commodity  rate  may 
not  be  applied  to  the  transportation  of  passengers  or  a  pas- 
senger fare  to  the  transportation  of  a  commodity,  and  that 
therefore  employees  of  the  newspapers,  riding  on  special  news- 
paper trains,  can  not  lawfully  be  transported  under  a  commodity 
rate  established  for  the  carriage  of  newspapers  or  at  any  rate 
other  than  the  one  specified  in  the  regularly  published  schedule 
of  passenger  fares. 


March  4,  igoy. 

213.  DIVERTING  TRAFFIC  BECAUSE  OF  BLOCK- 
ADES.—  (a)  Whenever,  by  reason  of  blockade  upon  the  line  of 
a  carrier  resulting  from  storm,  washout,  wreck,  or  similar  cas- 
ualty, it  becomes  necessary  for  it  to  divert  to  the  line  of  another 
carrier  passengers  or  freight  that  are  in  transit,  the  carrier  so 
diverting  its  business  should  pay  the  carrier  or  carriers,  upon 
whose  train  such  passengers  or  freight  are  carried,  regular  tariff 
rates  or  fares  from  and  to  the  points  between  which  it  or  they 
transport  such  diverted  traffic,  except  that  if  the  carrier  accept- 
ing such  diverted  traffic  is  ])arlici])ant  in  a  joint  tariff  in  which 
the  diverting  line  is  also  a  ])artici])ant  anrl  under  which  the  di- 


850  Conference  Rulings. 

verted  traffic  is  being  moved,  settlement  may  be  made  on  basis 
of  the  division  of  the  through  joint  rate  or  fare.  fSee  Rulings 
83,  138,  146,  147,  and  183.) 

(b)  If,  because  of  such  blockade,  a  carrier's  train  is  detoured 
over  the  line  of  another  carrier,  or  special  train  is  arranged  for 
movement  of  the  interrupted  traffic,  the  tariff  rates  or  fare,  if 
there  be  any  for  such  movement,  must  be  applied.  In  the  ab- 
sence of  such  tariff  regulations  compensation  should  be  agreed 
upon.     (See  Ruling  138.) 

This  rule  does  not  apply  in  cases  of  congested  hues  due  to 
heavy  traffic  or  ordinary  causes. 


March  i8,  igoy. 

214.  ROUTING  AND  MISROUTIXG  FREIGHT.— Ca) 
Alleged  neglects  or  errors  on  part  of  agents  of  carriers  in  mis- 
routing  shipments  lead  to  numerous  claims  of  overcharge,  many 
of  which  are  meritorious.  The  lawful  charge  on  any  shipment 
is  the  tariff  rate  via  the  route  over  which  the  shipment  moves. 
Xo  carrier  can  lawfully  refund  any  part  of  the  lawful  charge 
except  under  authority  so  to  do  from  the  Commission  or  from 
a  court  of  competent  jurisdiction.  (See  Ruling  286-a. )  That 
thorough  understanding  and  uniform  practice  may  be  had  in 
this  connection,  the  Commission  issues  the  following  administra- 
tive ruling: 

(b)  In  order  to  secure  desired  delivery  to  industries,  plants, 
or  warehouses  and  avoid  unnecessary  terminal  or  switching 
charges,  the  shipper  may  direct  as  to  terminal  routing  or  deliv- 
ery of  shipments  which  are  to  go  beyond  the  lines  of  the  initial 
carrier;  and  his  instructions  as  to  such  terminal  delivery  must 
be  observed  in  routing  and  billing  such  shipments^  The  carriers 
may  not  disregard  the  instructions  of  shippers  as  to  intermediate 
routing,  except  when  tariff  of  initial  line  reserves  the  right  to 
carrier  to  dictate  intermediate  routing.  When  such  reservation 
is  made  in  tariff,  d)  where  all-rail  rates  and  rail-and-water 
rates  are  available  the  agent  of  carrier  must  have  the  shipper 
designate  which  of  the  two  he  wishes  to  use ;  and  f  2)  the  agent 
must  not  route  shipment  via  a  route  that  will  be  more  expensive 
to  the  shipper  than  the  one  desired  by  him,  or  that  does  not 
furnish  substantially  as  good  and  expeditious  service.     If  car- 


Confere;nce  Rulings.  851 

rier  is  not  willing  to  observe  the  intermediate  routing  instruc- 
tions of  shipper  it  must  not  execute  bill  of  lading  containing 
such  routing.  Carriers  will  be  held  responsible  for  routing 
shown  in  bill  of  lading.  (See  Rulings  190,  284,  and  316. 
Amended  by  Ruling  321.) 

(c)  In  the  absence  of  specific  through  routing  by  shipper, 
which  carrier  is  willing  to  observe,  it  is  the  duty  of  the  agent 
of  the  carrier  to  route  shipment  via  the  cheapest  reasonable  route 
known  to  him  of  the  class  designated  by  the  shipper — that  is, 
all-rail,  or  rail-and-water — and  via  which  he  has  rates  which  he 
can  lawfully  use.  If  a  foreign  car  is  available  which  under  rules 
as  to  car  service  must  be  sent  via  a  particular  line  or  route  over 
which  a  higher  rate  obtains,  agent  must  explain  to  shipper  that 
fact  and  allow  shipper  to  elect  whether  he  will  use  that  car  at 
the  higher  rate  or  wait  for  another  car.  If  shipper  elects  to 
use  the  car  at  the  higher  rate,  agent  should  so  note  on  bill  of 
lading.  If  agent  is  in  doubt,  he  should  secure  information  from 
proper  officers  of  traffic  departments.  It  is  important  that  agents 
at  initial  points  be  able  to,  and  that  they  do,  quote  correct  rates 
and  give  correct  routings.     (See  Rulings  91,  140,  190,  284,  316.) 

(d)  If  a  carrier's  agent  misroutes  a  shipment  and  thus  causes 
extra  expense  to  the  shipper  over  and  above  the  lawful  charges 
via  another  available  route  of  the  class  designated  by  shipper — 
that  is,  all  rail  or  rail  and  water — over  which  such  agent  had 
applicable  rates  which  he  could  lawfully  use,  and  responsibility 
for  agent's  error  is  admitted  by  the  carrier,  such  carrier  may,  as 
to  shipments  moving  subsequent  to  March  18,  1907,  adjust  the 
overcharge  so  caused  by  refunding  to  shipper  the  difference  be- 
tween the  lawful  charges  via  the  route  over  which  shipment 
moves  and  what  would  have  been  the  lawful  charges  on  same 
shipment  at  the  time  via  the  cheaper  available  route  of  the  class 
designated  which  could  have  been  lawfully  used.  Such  refund 
must  in  no  case  exceed  the  actual  difference  between  the  lawful 
charges  via  the  different  routes  as  specified,  and  must  in  every  in- 
stance be  paid  in  full  by  the  carrier  whose  agent  caused  such  over- 
charge and  must  not  be  shared  in  by  or  divided  with  any  other  car- 
rier, corporation,  firm,  or  person.  This  authority  is  limited  strictly 
to  the  cases  specified  and  to  the  circumstances  recited  and  does 
not  extend  or  apply  to  instances  in  which  soliciting  or  commer- 
cial agents  of  carriers  induce  shii)pers  to  route  shipments  over 


852  Conference  Rulings. 

a  particular  line  via  which  a  higher  rate  obtains  than  is  effective 
via  some  other  line.     (See  Rulings  93  and  286.) 

(e)  The  rule  is  intended  to  apply  to  cases  in  which  the  agents 
who  bill  or  actually  forward  or  divert  shipments  through  error 
or  oversight  send  the  shipments  via  routes  that  are  more  ex- 
pensive than  those  directed  by  shippers  or  available  in  the  ab- 
sence of  routing  instructions  by  shippers.  It  must  not  be  used 
in  any  case  or  in  any  way  to  "meet"  or  "protect"  a  rate  via  an- 
other route  or  gateway  via  which  the  adjusting  carrier  has  not 
in  its  tariffs  at  the  time  the  shipment  moves  rates  which  are 
available  and  lawfully  applicable  thereto,  nor  as  a  means  or 
device  by  which  to  evade  tariff'  rates  or  to  meet  the  rate  of  a 
competing  line  or  route,  nor  to  relieve  shipper  from  responsibility 
for  his  own  routing  instructions. 


November  75,  igoj. 

if)  The  prerequisites  to  any  refund  under  this  rule  are  ad- 
mission by  carrier  of  responsibility  for  its  agent's  error  in  mis- 
routing  the  shipment,  and  such  carrier's  willingness  to  bear  the 
extra  expense  so  caused,  without  recourse  upon  any  other  car- 
rier for  any  part  thereof.  If,  therefore,  the  error  is  discov- 
ered before  the  shipment  has  been  delivered  to  consignee  or 
before  charges  demanded  upon  same  have  been  paid,  the  car- 
rier acknowledging  responsibility  for  the  error  may  authorize 
the  delivering  carrier  to  deliver  shipment  upon  payment  of  the 
charges  that  would  have  applied  but  for  the  misrouting  and  to 
bill  upon  it  for  the  extra  charge:  or,  if  the  shipment  has  been 
delivered  undercharged  before  the  error  is  discovered,  the  car- 
rier that  acknowledges  responsibility  for  the  error  may  pay  the 
undercharge  to  the  carrier  that  delivered  the  shipment  instead 
of  requiring  it  to  collect  the  undercharge  from  shipper,  to  be 
refunded  to  shipper.     (Interpreted  by  Ruling  198.) 

Complete  distinction  must  be  observed  between  cases  to  which 
this  rule  applies  and  those  provided  for  under  Ruling  217. 

{g)  Shippers  must  bear  in  mind  that  there  is  a  limit  beyond 
which  an  agent  of  a  carrier  could  not  reasonably  be  expected  to 
know  as  to  terminal  delivery  or  local  rates  at  distant  points  and  on 
lines  of  distant  roads  to  or  with  which  he  has  no  specific  joint 
through  rates.     Consignors  and  consignees  should  cooperate  with 


Conference  Rulings.  853 

agents  of  carriers  in  avoiding  misunderstandings  and  errors  in 
routing  and  must  expect  to  bear  some  responsibility  in  connec- 
tion therewith. 


MarcJi  p,  igog. 

(h)  If,  under  this  rule,  a  carrier  adjusts  a  claim  for  mis- 
routing  and  later  learns  that  the  responsibility  for  misroutinj^ 
actually  rests  upon  another  carrier,  such  other  carrier  may  vol- 
untarily reimburse  the  carrier  that  made  the  payment  in  the  full 
amount  of  such  payment,  or  the  matter  may,  if  necessary,  be 
referred  to  the  Commission  for  determination  of  the  question 
of  w^hich  carrier  is  responsible  for  the  error. 


April  6,   I  pop. 

(i)  In  some  instances  a  shipper  tenders  a  shipment  accom- 
panied by  a  bill  of  lading  in  which  certain  routing  is  specified 
and  in  which  he  also  enters  the  rate  which  he  expects  to  have  apply 
to  the  shipment.  In  such  instances  if  the  rate  so  entered  in  the 
bill  of  lading  does  not  apply  via  the  route  specified  in  the  bill 
of  lading  but  is  lawfully  applicable  via  another  route,  it  is  the 
duty  of  the  carrier  to  send  the  shipment  via  the  route  via  which 
such  rate  lawfully  applies,  unless  a  lower  rate  is  lawfully  appli- 
cable via  the  route  specified  by  shipper;  and  failure  on  part  of 
carrier's  agent  to  follow  this  course  will  be  deemed  misrouting, 
responsibility  for  which  will  rest  upon  the  carrier  whose  agent 
so  misroutes  the  shipment.  (Reaffirmed  and  amended  by  Rul- 
ings 286-/;  see  also  Rulings  159  and  192.) 


March  i8,  ipoy. 

215.  COMBINATION  OF  JOINT  RATE  OR  FARE  TO 
COMMON  POINTS  AND  LOCAL  RATE  OR  FARE  BE- 
YOND.—  (a)  In  order  to  secure  uniformity  in  practice  and  un- 
derstandings and  to  remove  the  cause  of  many  complaints,  the 
Commission  decides  that  when  a  joint  through  rate  of  fare  is 
the  same  to  two  or  more  points  and  rate  or  fare  on  through  ship- 
ment or  passenger  to  local  station  to  which  no  specific  joint 
through  rate  or  fare  applies  is  made  \\\~)  by  combination  of  such 
joint  through  rate  or  fare  to  common  points  and  local  rate  or  fare 
beyond,  the  rate  or  fare  for  through  shipment  or  passenger  must 


854  Conference  Rulings. 

be  determined  by  calculating  the  joint  through  rate  or  fare  to 
the  point  from  which  the  lower  local  rate  or  fare  applies  to 
point  of  destination  and  adding  thereto  such  local  rate  or  fare. 
For  example :  Joint  through  tariff  names  the  same  rates  or  fares 
from  certain  eastern  points  to  Chicago  and  Milwaukee.  If  ship- 
ment or  passenger  is  destined  to  a  point  to  which  the  local  rate 
or  fare  is  less  from  Milwaukee  than  from  Chicago,  the  rate  or 
fare  applied  should  be  the  joint  through  rate  or  fare  to  Mil- 
waukee plus  the  local  rate  or  fare  from  ■Milwaukee  to  destina- 
tion, and  unless  the  lines  of  delivering  carrier  reach  both  Chi- 
cago and  Milwaukee  the  shipment  or  passenger  should  move  via 
IMilwaukee.  If  the  local  rate  or  fare  from  Chicago  to  point  of 
destination  is  lower  than  from  Milwaukee,  the  rate  or  fare 
should  be  the  joint  through  rate  or  fare  to  Chicago  plus  the 
local  rate  or  fare  from  Chicago  to  destination,  and  unless  the 
lines  of  delivering  carrier  reach  both  Milwaukee  and  Chicago 
the  shipment  or  passenger  should  move  via  Chicago. 

(b)  Rates  or  fares  for  outbound  through  movements  from 
such  local  stations  and  under  like  circumstances  must  be  ap- 
plied on  the  same  basis  where  the  joint  through  rates  or  fares 
are  the  same  from  two  or  more  points. 

( c)  This  does  not  authorize  any  carrier  to  apply  to  transpor- 
tation over  its  lines  any  rate  or  fare  except  those  stated  in  its 
own  lawfully  published  tariffs  or  in  the  lawfully  published  jcuit 
tariffs  in  which  it  has  concurred.  If  a  carrier  desire-  to  "meet 
the  rate"  of  a  competitor,  it  must  do  so  by  lawfully  including 
in  its  own  tariffs  such  specific  rates  or  fares,  proportional  or 
otherwise,  as  may  be  necessary  so  to  do.  (See  Rulings  195  and 
214.) 

( d)  It  is  suggested  that  shippers  can  assist  in  avoiding  mis- 
takes and  misunderstandings  by  calling  attention  to  the  rate  that 
should  apply  in  such  cases  as  come  under  this  rule  by  indicating 
it  on  shipping  bill  in  connection  with  routing  instructions ;  for 
instance,  "Rate  on  Milwaukee."  This  is,  however,  merely  a 
suggestion,  and  does  not  relieve  the  agents  of  carriers  from 
the  responsibility  of  quoting  and  applying  the  correct  lawful 
rate. 

( e)  This  rule  does  not  apply  where  a  shipment  has  reached 
its  destination  as  originally  given  by  shipper  and  has  been  re- 


Conference  Rulings.  855 

consigned,    except    when    tariff   contains    reconsigning   rule   that 
provides  for  such  application. 

(f)  This  rule  must  not  apply  in  any  case  where  there  is  an 
applicable  specific  joint  through  rate  or  fare  from  point  of  origin 
to  point  of  destination.      (See  Rule  55,  Tariff  Circular  18-A.) 


March  2^,  190/. 

216.  FREE  TRANSPORTATION  OF  OFFICERS  OR 
EMPLOYEES  OF  OMNIBUS  OR  BAGGAGE  EXPRESS 
COMPANIES. — In  its  decision  on  the  petition  of  the  Frank 
Parmelee  Company,  the  Commission  held  that  a  carrier  sub- 
ject to  the  act  can  not  lawfully  give  free  transportation  to  offi- 
cers, agents,  or  employees  of  an  omnibus  or  baggage  express 
company,  except,  as  authorized  in  the  act,  for  baggage  agents 
who  meet  passenger  trains  at  some  point  near  the  larger  cities 
and  go  through  the  trains  to  arrange  for  transfer  of  passengers 
and  their  baggage.     (See  Ruling  95-o,  par.  3,  and  9S-g.) 


May  6,  1907. 

217.  RETURN  OF  ASTRAY  SHIPMENTS.— Instances 
occur  in  which,  through  error  or  oversight  on  the  part  of  some 
agent  or  employee,  a  shipment  is  billed  to  an  erroneous  destina- 
tion or  is  unloaded  short  of  destination  or  is  carried  by.  The 
Commission  is  of  the  opinion  that  in  bona  fide  instances  of  this 
kind  carriers  may  return  such  astray  shipments  to  their  proper 
destination  or  course  without  the  assessment  of  additional 
charges,  and  may  arrange  for  such  movement  of  such  astray 
shipments  for  each  other  on  mutually  acceptable  terms  with- 
out the  necessity  of  publishing,  posting,  and  filing  tariff  under 
which  it  will  be  done.      (See  Rulings  31   and  240.) 

Complete  distinction  must  be  observed  between  cases  to  which 
this  rule  applies  and  those  provided  for  under  Ruling  214. 


May  2'j,  J  go  J. 

218.  TRANSPORTATION  OF  FEDERAL  TROOPS.— 
The  Commission  is  of  the  opinion  that  carriers,  either  by  con- 
tract or  bid  or  other  arrangement  with  the  War  Department, 
may  lawfully  make  special  rates  or  fares  for  the  movement  of 


856  Conference  Rulings. 

federal  troops,  when  moved  under  orders  and  at  the  expense 
of  the  United  States  Government,  and  that  the  rates  or  fares 
so  made  need  not  be  posted  or  filed  with  the  Commission.  (See 
Rulings  33  and  ZOS-^-.) 

The  lawfully  published  rates  or  fares  for  the  transportation 
of  the  general  public,  in  the  opinion  of  the  Commission,  are 
to  be  regarded,  however,  as  the  maximum  rates  and  fares  that 
may  lawfully  be  charged  the  Government  for  the  movement 
of  federal  troops. 

This  ruling  also  governs  similar  transportation  for  the  naval 
and  marine  services.  (Ruling  does  not  apply  to  state  or  ter- 
ritorial troops:  see  Ruling  297.) 


June  J?,   ipo/. 

219.  TRANSPORT ATIOX  OF  ^lEN  OR  PROPERTY 
FOR  TELEGRAPH  COMPANIES.— (a)  In  its  decision  on 
the  petition  of  the  Western  Union  and  Postal  Telegraph  com- 
panies, issued  December  27,  1906,  the  Commission  held  it  would 
be  unlawful  for  a  carrier  subject  to  the  act  to  contract  or 
stipulate  with  a  telegraph  company  for  the  carriage  of  its 
officials,  employees,  or  property  for  any  greater  or  less  or 
different  compensation  than  that  specified  in  the  regularly  pub- 
lished tariffs  in  eft'ect  at  the  time,  except  in  connection  with  the 
construction,  operation,  and  maintenance  of  telegraph  line  and 
service  on  its  own  line.  It  was  held  that  a  group  of  separately 
incorporated  roads,  recognized  as  a  "railway  system,"  may  be 
considered  as  one  in  the  making  of  contracts  for  telegraph  serv- 
ice on  that  system.  (See  Rulings  95-a,  par.  2.  and  161;  see 
also  amendatory  act  of  June  18,  1910,  interpreted  in  Ruling 
305.) 

(b)  This  definitely  dift'erentiates  between  the  employees  of 
the  telegraph  company  who  are  actually  engaged  in  construct- 
ing and  maintaining  a  telegraph  line  along  the  line  of  a  rail- 
way, or  in  operating  such  telegraph  line  as  a  part  of  the  actual 
operation  of  that  railway,  and  those  who  are  engaged  in  the  com- 
mercial business  of  the  telegraph  company.  The  fact  that  rail- 
way officials  may,  by  use  of  deadhead  franks,  send  messages 
on  railway  business  from  or  receive  such  messages  at  a  com- 
mercial office  of  a  telegraph  company  does  not  constitute  that 


Conference  Ruungs.  857 

office  a  part  of  the  operation  of  any  of  the  lines  of  railway  which 
such  officials  represent  nor  bring  that  telegraph  office  into  such 
relationship  with  the  business  of  the  railways  as  to  warrant 
treating  it  as  part  of  the  operating  facilities  of  such  railways. 
Practically  all  telegraphing  so  done  is  "ofif  the  line"  business 
and  is  to  be  considered  as  commercial  business.  The  same  dis- 
tinction is  to  be  observed  in  the  hauling  of  materials  and  sup- 
plies for  telegraph  companies  with  which  the  railway  company 
has   contract   for  telegraphic   service.      (See   Ruling  305.) 


November  if,,  iQoy. 

(c  This  rule  applies  also  to  telephone  service,  and  carriers 
that  have  not  already  done  so  are  hereby  requested  and 
called  upon  to  promptly  file  with  the  Commission  copies  of  all 
contracts  for  telegraph  or  telephone  service  on  their  lines.  (See 
Ruling  305.) 


June  7,   igoj. 

220.  SPECIAL  REPARATION  ON  INFORMAL  COM- 
PLAINTS.—  (a)  To  assist  in  the  settlement  of  certain  claims 
of  shippers  against  carriers,  and  as  a  practical  means  of  dis- 
posing with  promptness  of  informal  complaints  that  might  oth- 
erwise develop  into  formal  complaints,  and  in  connection  with 
which  the  unreasonableness  of  the  rate  or  regulation  is  admitted 
by  the  interested  carrier  or  carriers,  the  Commission  on  full 
information  will  authorize  adjustment  by  special  order  if  all 
of  the  facts  and  conditions  warrant  such  action.  The  connec- 
tions in  which  the  Commission  has  authority  to  modify  the  pro- 
visions of  the  law  are  specified  in  the  act.  The  Commission  will 
not  assume  to  modify  it  in  any  other  connections  or  features. 

(&)  The  instances  in  which  the  Commission  will  authorize 
refund  or  reparation  on  informal  complaint  and  in  an  informal 
way  will  be  confined  to  those  in  which  the  informal  showing 
develops  plainly  a  case  in  which  the  Commission  would  award 
reparation  on  formal  hearing  and  in  which  an  adjustment  agree- 
able to  complainant  and  carrier  or  carriers  and  in  conformity 
with  the  provisions  of  the  law  is  reached. 

ic)  Reparation  involving  refund  of  alleged  overcharges  in  in- 
stances   in    which    the    lawful    tariff    rates    have    l)een    applied 


858  Conference;  Rulings. 

will  be  authorized  under  informal  proceedings  only  when  the 
carrier  admits  the  unreasonableness  of  the  rate  charged  and  it 
is  shown  that  within  a  reasonable  time,  not  exceeding  six  months, 
after  the  shipment  moved  it  has  incorporated  in  its  own  tariffs, 
or  in  tariffs  in  which  it  has  concurred,  the  rate  upon  basis  of 
which  adjustment  is  sought  and  has  thus  made  that  rate  law- 
fully applicable  via  the  route  over  which  shipment  in  question 
moved.  Adjustment  of  a  claim  of  this  character  that  is  filed 
with  the  Commission  within  six  months  after  the  shipment  moved 
may,  however,  be  authorized,  even  if  more  than  six  months  have 
elapsed  between  the  movement  of  the  shipment  and  the  effective 
date  of  tariff  rate  or  regulation  that  forms  the  basis  of  such  ad- 
justment. Authority  for  refund  on  account  of  a  reduced  rate 
or  changed  tariff  regulation  will  also  contain  Commission's  or- 
der requiring  the  maintenance  of  such  rate  or  regulation  for 
at  least  one  year.  (See  Rulings  14  and  200.  Superseded  by 
Ruling  396.) 

(d)  No  carrier  may  pay  any  refund  from  its  published  tariff 
charges  save  with  the  specific  authority  of  the  Commission  in  ac- 
cordance with  the  provisions  of  the  act.  When  an  informal  or 
formal  reparation  order  has  been  made  by  the  Commission  the 
principle  upon  which  it  is  based  shall  be  extended  to  all  like 
shipments,  but  no  refunds  shall  be  made  upon  such  like  ship- 
ments except  upon  specific  authority  from  the  Commission  there- 
for.    (See  Rulings  49  and  200-c.) 

( e)  The  shipper  should  pay  the  lawfully  published  charges 
applicable  via  the  route  over  which  the  shipment  moves,  and 
make  claim  for  refund  if  he  believes  he  has  been  overcharged. 
The  Commission  will  not  ordinarily  include  in  reparation  award 
demurrage  charges  which  accrue  pending  adjustment  or  subse- 
quent to  consignee's  refusal  to  accept  the  shipment  and  pay 
the  lawful  charges  thereon,  but  in  special  cases  such  demurrage 
charges  may  be  included  in  the  amount  of  refund.  (See  Rul- 
ing 32.) 

(/)  It  is  the  duty  of  the  delivering  carrier  to  collect,  and  of 
the  consignee  to  pay,  demurrage  charges  as  per  lawful  tariffs. 
Demurrage  charges  accruing  because  of  error  of  a  carrier  are 
considered  in  the  same  light  as  are  other  additional  transporta- 
tion charges  caused  by  carrier's  error:  and  if  adjusted,  the  full 


Conference  Rulings.  859 

expense  thereof  must  be  borne  by  the  carrier  whose  agent  is 
responsible  for  the  error.  (See  RuHng  214;  see  also  note  to 
Ruling  242.) 

(g)  The  Commission  has  repeatedly  announced  the  view  that 
the  law  does  not  permit  the  use  of  any  rate  or  fare  except  that 
contained  in  a  lawful  tarifif  that  is  applicable  via  the  line,  route, 
and  gateway  over  and  through  which  the  shipment  or  passenger 
moves.  The  lawful  rate  or  fare  for  through  movement  is  the 
through  rate  or  fare,  wherever  such  through  rate  or  fare  ex- 
ists, even  though  some  combination  makes  a  lower  rate  or  fare 
and  even  though  the  practice  in  the  past  has  been  to  give  to 
some  the  benefit  of  such  lower  combination.  The  Commission 
long  since  extended  to  carriers,  in  a  general  order,  permission 
to  reduce,  on  one  day's  notice,  a  joint  commodity  or  class  rate 
or  fare  that  is  higher  than  the  sum  of  the  intermediate  rates 
between  the  same  points  to  make  it  equal  the  sum  of  such  in- 
termediates. If,  therefore,  carriers  have  maintained  through 
rates  or  fares  that  are  higher  than  the  sums  of  the  intermediates 
between  the  same  points,  it  is  because  of  their  desire  so  to  do, 
and  not,  as  some  agents  of  carriers  have  informed  shippers,  be- 
cause the  law  or  the  Commission  forces  them  to  do  so.  (See 
Rule  56,  Tarifif  Circular  17-A  or  18-A.) 

(h)  If  a  carrier  desires  to  give  its  patrons  the  benefit  of  the 
same  rate  or  fare  that  applies  via  another  line  or  gateway,  and 
which  is  lower  than  its  own  rate  or  fare,  it  can  do  so  by  law- 
fully incorporating  that  rate  or  fare  in  its  own  tarififs,  and  so 
give  the  benefit  of  it  to  all  of  its  patrons  alike.  The  law  forbids 
giving  such  lower  rate  or  fare  to  one  and  withholding  it  from 
another,  but  neither  the  law  nor  the  Commission  stands  in  the 
way  of  adoption  in  lawful  manner  of  the  lower  rate  or  fare  as 
available  for  all.     (See  Ruling  205.) 

(i)  The  Commission's  power  to  authorize  adjustments  will  not 
be  exercised  in  such  way  as  to  create  the  very  discriminations 
which  the  law  aims  to  prevent.  No  doubt  instances  will  occur 
in  which  seeming  hardship  will  come  to  some.  Much  of  such 
embarrassment  will  be  avoided  if  agents  of  carriers  and  ship- 
pers take  pains  to  be  certain  that  correct  rates  are  quoted  and 
correct  routing  is  given. 

(/)  Claims  filed  since  August  28,  1907,  must  have  accrued 
within  two  years  immediately  prior  to  the  date  upon  which  they 


860  Conference  Rulings. 

are  filed ;  otherwise  they  are  barred  by  the  statute.  Claims  filed 
with  the  Commission  on  or  before  x'Vugust  28,  1907,  are  not 
affected  by  the  two  years"  limitation  in  the  act.  The  Commis- 
sion will  not  take  jurisdiction  of  or  recognize  its  jurisdiction 
over  any  claim  for  reparation  or  damages  which  is  barred  by 
the  statute  of  limitation,  as  herein  interpreted,  and  the  Com- 
mission will  not  recognize  the  right  of  a  carrier  to  waive  the 
limitation  provisions  of  the  statute.  (See  Rulings  10,  306,  and 
307.) 


July  S,   IQO/. 

221.  REFUNDS  AND  COMMISSIONS.— fa)  The  act  pro- 
hibits a  carrier  from  demanding,  collecting,  or  receiving  a  greater 
or  less  or  different  compensation  for  transportation  than  that 
named  in  its  tariffs  in  effect  at  the  time.  It  prohibits  the  rebat- 
ing or  refunding  to  any  person  in  any  manner,  or  by  any  device 
whatsoever,  any  part  of  the  lawful  charges  so  collected.  It  is 
therefore  manifestly  unlawful  for  a  carrier  to  refund  to  any  as- 
sociation, committee,  or  person  any  part  of  the  charges  collected 
by  the  carrier  as  a  condition  of  the  sale  of  transportation.  A 
carrier's  agents  may,  as  a  matter  of  convenience,  sell  admission 
tickets  to  entertainments  in  connection  with  which  excursion-fare 
tickets  are  sold,  but  the  purchase  of  such  admission  ticket  must 
not  be  made  a  condition  of  the  sale  of  transportation  ticket.  (See 
Ruling  7.) 


Marcli   I,   iQo8. 

(b)  The  act  does  not  prohibit  a  carrier  from  providing  in 
its  own  interest  and  as  a  means  of  stimulating  travel  over  its 
line  an  entertainment  at  a  point  on  its  line ;  nor  from  contrib- 
uting to  the  expense  of  such  an  entertainment  if  such  contri- 
bution be  made  in  a  definite  sum  and  be  in  no  way  dependent 
or  contingent  upon  the  number  of  tickets  sold,  and  provided 
that  no  part  of  such  contribution  be  by  any  device  or  through 
any  person  whatsoever  permitted  to  effect  any  departure  from 
or  discrimination  under  the  carrier's  tariff'  fares. 


A'lay  12.  iQo8. 
'    (c)   The  Ruling  of  the  Commission  on  this  date,  published  in 


Conference  Rulings.  861 

Conference  Rulings  Bulletin  Xo.  4,  was  amended  on  February 
14,  1911,  to  read  as  follows: 

A  carrier  may  employ  an  agent  to  act  for  it  in  working  up 
passenger  excursions  and  make  his  compensation  depend  upon 
the  results  of  his  efforts  by  executing  a  contract  in  the  follow- 
ing form  and  filing  a  copy  with  the  Commission,  together  with 
reference  by  I.  C.  C.  number  to  the  tariff  which  contains  the 
fares.  Any  person  so  appointed  becomes  in  fact  the  agent  of 
the  appointing  carrier  and  such  carrier  will  be,  and  will  be  held, 
responsible  and  liable  for  his  acts  as  its  agent.  If  any  part  of 
the  compensation  paid  by  a  carrier  to  such  an  agent  is  used 
either  directly  or  indirectly  in  such  way  as  to  reduce  for  any 
person  the  lawful  tariff'  charges  of  any  carrier  subject  to  the 
act  to  regulate  commerce,  the  agent  or  agents  and  the  carrier 
or  carriers  causing  or  permitting  such  departure  from  the  law- 
ful tariff  charges  will  be  held  to  full  responsibility  and  liability 
therefor : 

The  rail company,  having  arranged  to  run  an  ex- 
cursion   from  to   and   return,    on   ,    to    be   known 

as  the  excursion,  at  the  following  fares:  Adults, — :  chil- 
dren,   .  hereby  appoints  ,   residing  at  ,   its  agent  to 

solicit  and  develop  business  for  said  excursion  and  accepts  responsi- 
bility and  liability  for  the  acts  of  said  agent.     The  said  hereby 

agrees  to  devote   to  this  work  such   portion   of  his   time   from 

to  as  may  be  necessary,   in  consideration   of  which   the 

rail  company  agrees  to  compensate  him  as   follows:   If  

adult  tickets,  or  their  equivalent,  are  sold,  cents  for  each  adult 

and   cents    for   each    half   ticket   so    sold. 

It    is    understood    and    agreed    that    no    compensation    will    be    paid 

hereunder   if   less    than adult   tickets,    or   their    equivalent,    are 

sold. 

April  /J,  ipo8. 

222.  DEMURRAGE  ON  PRIVATELY  OWNED  CARS. 
— The  Commission  decided  in  case  No.  933,  "In  the  Matter  of 
Demurrage  Charges  on  Privately  Owned  Tank  Cars,"  13  I.  C. 
C.  Rep.,  378,  that  private  cars  owned  by  shippers  and  hired  to 
carriers  upon  a  mileage  basis  are  subject  to  demurrage  when 
said  cars  stand  ujion  the  tracks  of  the  carrier  either  at  point 
of  origin  or  destination  of  shi])ment,  but  are  not  so  subject  when 
upon  either  the  private  track  of  tlie  owner  of  the  car  or  the  pri- 
vate track  of  the  consignee.     The  carrier  must   charge  demur- 


862  Conference  Rulings. 

rage  in  all  cases  where  such  demurrage  is  imposed  by  tariff 
provision  upon  its  own  equipment,  except  when  a  privately 
owned  car  is  upon  a  privately  owned  siding  or  track  and  the 
carrier  is  paying  or  is  responsible  for  no  rental  or  other  charge 
upon  such  car.  (Modified  and  explained  by  Ruling  79;  see 
important  note  to  Ruling  242 ;  see  also  Rule  7^^  of  Tariff  Cir- 
cular 18-A  and  Rulings  123  and  270  of  this  bulletin.) 

May  12,  iQoS. 

223.  de:\iurrage  ox  interstate  shipment.— 

(a)  The  act  requires  that  carriers  shall  publish,  post,  and  file 
"all  terminal  charges  *  *  *  which  in  any  wise  change,  af- 
fect, or  determine  *  *  *  the  value  of  the  service  rendered 
to  the  passenger,  shipper,  or  consignee,"  and  all  such  charges 
become  a  part  of  the  "rates,  fares,  and  charges"  which  the  car- 
riers are  required  to  demand,  collect,  and  retain.  Such  terminal 
charges  include  demurrage  charges. 

fb)  On  ]\Iarch  16,  1908,  the  Commission  decided  that  demur- 
rage rules  and  charges  applicable  to  interstate  shipments  are 
governed  by  the  act  to  regulate  commerce,  and  therefore  are 
within  its  jurisdiction  and  not  within  the  jurisdiction  of  state 
authorities.  Any  other  view  would  open  a  wide  door  for  the 
use  of  such  rules  and  charges  to  effect  the  discriminations  which 
the  act  prohibits.     (See  Ruling  54.) 

fc)  Demurrage  rules  and  charges  must  be  observed  as  strictly 
as  transportation  rules  and  charges.  The  Commission  can  not, 
therefore,  recognize  as  lawful  any  rule  governing  demurrage 
the  application  of  which  is  dependent  upon  the  judgment  or 
discretion  of  some  person,  or  which  provides  for  exemption 
therefrom  in  certain  exigencies  in  the  creation  of  which  the 
carrier  has  no  part.  Interstate  tariff's  containing  such  rules 
must  be  corrected  or  canceled.  (See  important  note  to  Ruling 
242.  This  rule  is  also  published  as  Rule  75  of  Tariff  Circular 
18-A.  It  is  amended  bv  Ruling  135  herein;  see  also  Ruling 
54.) 


May  12,  igo8. 

224.  TRANSPORTATION  OF  TRUCKS  OF  CARS  DE- 
STROYED ON  FOREIGN  LINES.— If  a  car  of  one  company 


Conference  Rulings.  863 

is  destroyed  on  the  line  of  another  company  and  the  hnes  of 
those  two  companies  directly  connect  with  each  other,  the  car- 
rier upon  whose  line  the  car  is  destroyed  may  transport  free, 
as  its  own  property,  to  junction  with  the  line  of  the  carrier 
owning  the  car,  the  trucks  of  the  destroyed  car,  which  are  un- 
derstood to  be  salvage  from  a  wreck,  the  cost  of  which  must 
be  borne  by  the  carrier  on  whose  line  it  occurs.  If  there  is 
not  direct  connection  between  the  line  of  the  carrier  owning  the 
car  and  the  line  upon  which  it  is  destroyed,  the  carrier  on  whose 
line  the  car  is  destroyed  may  transport  the  trucks  free  to  a 
junction  with  an  intermediate  carrier,  and  pay  to  the  inter- 
mediate carrier  or  carriers  their  full  tariff  rates  for  transport- 
ing them  to  a  junction  with  the  line  of  the  carrier  owner  of 
the  car  destroyed,  and  such  owner  may  transport  them  on  its 
own  line  as  its  own  property. 

It  does  not  appear  to  the  Commission  that  opportunity  for 
abuse  or  discrimination  is  opened  by  this  practice.  It  does  not 
appear  to  transgress  the  Commission's  rule  that  carriers  may 
not  haul  freight  free  for  each  other ;  and  it  is  approved  with 
the  reservation  that  if  discrimination  or  unlawful  practice  is 
found  to  grow  out  of  it  the  plan  will  be  condemned.  (See  Rul- 
ing 225.) 


Noi'euiher  /?,    igo8. 

22  5.  CARRIERS  MAY  NOT  BE  GIVEN  PREFEREN- 
TIAL RATES. —  (a)  In  answer  to  inquiries  the  Commission 
expresses  the  opinion  that  under  the  law  a  carrier,  or  a  per- 
son or  corporation  operating  a  railroad  or  other  transportation 
line,  may  not,  as  a  shipper  over  the  lines  of  another  carrier,  be 
given  any  preference  in  the  application  of  tariff  rates  on  inter- 
state shipments,  but  it  may  lawfully  and  properly  take  advantage 
of  legal  tariff  joint  rates  applying  to  a  convenient  junction  or 
other  points  on  its  own  line,  provided  such  shipments  are  con- 
signed through  to  such  point  from  point  of  origin  and  are,  in 
good  faith,  sent  to  such  billed  destination.  In  other  words,  one 
carrier  shipping  its  fuel,  material,  or  other  supplies  over  the 
lines  of  another  carrier  must  pay  the  legal  tariff  rates  applica- 
ble to  the  same  commodities  shipped  by  an  individual,  but  when 
a  carrier  is  the  consignee  of  a  shipment  of  its  own  pro])erty 
which  moves  under  a  joint  rate  and  is  to  participate  in  the  haul 


864  Conference  Rulings. 

of  same  via  its  own  line,  routing  instructions  of  consignor  to  a 
specified  junction  point  on  the  line  of  consignee  carrier  must 
be  observed.  There  may  be  some  instances,  such  as  the  move- 
ment of  needed  fuel,  in  which,  in  order  to  keep  the  trains  or 
boats  moving,  such  traffic  could  temporarily  be  given  preference 
in  movement  without  creating  unjust  or  unwarranted  discrimi- 
nation.    (See  Rulings  153,  224,  and  373.) 

(  b  )  Where  stock  in  one  carrier  company  is  owned  by  another 
carrier  company,  but  both  maintain  separate  organizations  and 
report  separately  to  the  Commission,  they  may  not  lawfully  carry 
property  free  for  each  other.     (See  Ruling  9.) 


Noz  ember  p^  ipop. 

226.  SIGNATURE  TO  RELEASED  VALUATION 
CLAUSES  ON  BILLS  OF  LADING.— Rule  6  of  the  South- 
ern Classification  provides  that  where  the  tarifif  ofifers  a  reduced 
rate  based  on  a  certain  fixed  valuation  a  release,  in  the  form 
specified  in  the  tariff  and  containing  the  agreed  valuation,  must 
be  written  and  signed  by  the  shipper  on  the  face  of  the  bill  of 
lading.  As  applied  to  a  case  where  the  shipper  indorsed  the 
released  valuation  on  the  bill  of  lading,  but,  not  knowing  the 
requirements  of  the  rule,  omitted  to  indorse  the  special  form 
across  its  face,  it  was  Held,  That  the  rule  is  unreasonable  and 
that  it  is  the  carrier's  duty  to  secure  the  shipper's  signature  to 
such  a  release  on  the  bill  of  lading  when  it  has  reasonable  no- 
tice of  his  desire  to  take  advantage  of  the  lower  rate  upon  a 
released  valuation.     (Compare  Ruling  160.) 

227.  EXCHANGE  BILLS  OF  LADING.— It  is  the  view  of 
the  Commission  that  exchange  bills  of  lading  ought  to  show 
specifically  the  point  of  origin  of  the  shipment  and  the  route 
over  which  it  has  moved. 

228.  REDEMPTION  OF  MILEAGE  BOOKS.— The  rules 
governing  the  sale,  use,  and  redemption  of  mileage  books  should 
be  a  part  of  the  tariff  under  which  they  are  sold.  If  a  carrier 
deems  it  wise  to  provide  in  such  rules  for  the  redemption  ot 
unused  portions  of  such  books  on  the  basis  of  the  mileage  rate 
for  the  portion  used,  it  will  be  recognized  by  the  Commission 
as  redemption   "at  the   full  tariff'  rates"  within  the  meaning  of 


Conference  Rulings.  865 

Ruling   76,   of   this   bulletin,    when   the   books   were   sold   under 
tariff  authority  and  on  the  basis  of  a  s])ecific  sum  per  mile. 

229.  LINE  JOINTLY  OPERATED  THROUGH  SEPA- 
RATE COMPANY  MUST  CONCUR  IN  TARIFFS  FOR 
THROL'GH  TRAFFIC. — Two  carriers  desiring  a  joint  opera- 
tion of  their  combined  lines  between  two  points  propose  that 
they  shall  be  operated  by  a  new  and  separate  company  which 
shall  handle  as  its  own,  and  under  its  own  tariffs,  all  local  busi- 
ness between  those  points,  and  shall  handle  all  other  busi- 
ness under  some  arrangement  with  the  two  lines  which  does  not 
permit  it  to  participate  in  the  earnings  on  the  through  traffic: 
Held,  That  Ruling  180  of  this  bulletin,  entitled  "Lessee  road 
not  serving  as  common  carrier,"  does  not  apply  and  that  the 
road  operating  between  the  two  points  must  concur  in  the 
through   rates  over  its  line. 


November  22,  igoQ. 

230.  TRANSIT  PRIVILEGE— RESPONSIP.ILITY  OF 
CARRIER  FOR  MISROUTING.— As  the  agent  of  an  inter- 
mediate carrier  has  no  means  of  knowing  just  why  a  shipment 

s  been  routed  through  particular  junctions,  he  has  no  right 
to  substitute  his  own  judgment  as  to  routing  for  the  specific 
routing  instructions  accompanying  the  shipment.  In  a  stated 
case  the  initial  carrier  issued  bills  of  lading  showing  particular 
routing  but  no  rate ;  the  transfer  billing  subsequently  issued  to 
a  connecting  line  showed  the  routing  and  a  10-cent  division  of 
a  33-cent  rate  that  did  not  apply  through  the  junctions  named 
but  through  another  junction;  and  the  agent  of  the  connection 
therefore  diverted  the  shipment  through  the  latter  junction  to 
destination.  It  subsecjuently  appeared  that  because  of  the  di- 
version the  shipper  had  lost  a  transit  right  at  a  given  point  on 
the  route  specified,  which  was  necessary  to  effect  the  sale  of  the 
shipment  at  destination :  Held,  That  as  tariffs  are  permitted 
to  contain  rules  providing  that  they  are  subject  to  the  transit 
])rivileges  shown  on  the  tariffs  of  individual  carriers  on '  file 
with  the  Commission,  the  intermediate  line  was  responsible  to 
the  shi])per  for  the  difference  between  the  rate  i)aid  in  order  to 
get  the  shipment  back  to  the  transit  point  and  the  legal  rate 
over  the  route  directed  by  the  shipper.     (See  Ruling  214.) 

— 28 


866  Conference  Rulings. 

231.  CARRIER  MUST  FIND  THE  RATE  NAMED  BY 
SHIPPER  AND  ROUTE  ACCORDINGLY  OR  ASK  IN- 
STRUCTIONS.—A  bill  of  lading  showed  a  rate  of  $1.55  per 
ton  and  routing  in  care  of  a  connecting  line.  Through  one  junc- 
tion the  two  carriers  maintained  a  joint  through  rate  of  $1.75 
per  ton;  through  another  junction,  equally  direct  but  carrying 
no  joint  rate,  the  sum  of  the  intermediate  rates  was  $1.55  per 
ton  :  Held,  That  while  an  initial  line  is  not  chargeable  always 
with  knowledge  of  the  rates  of  its  connections,  yet  having  ac- 
cepted a  shipment  and  a  bill  of  lading  upon  which  the  consignor 
had  noted  a  definite  rate  it  was  its  duty  to  find  that  rate  and 
route  the  shipment  accordingly  or  to  call  upon  the  consignor  for 
further  instructions  ;  and  failing  to  do  either  it  is  liable  for  the 
excess  in  transportation  charges  resulting  from  routing  the  ship- 
ment through  one  junction  when  through  another  junction  equally 
direct  the  through  charge  is  the  amout  named  in  the  bill  of 
lading.     (  Reallfirmed  by  Ruling  286-/.) 

232.  CREOSOTING  LUMBER— TRANSIT  PRIVI- 
LEGE OF  EIGHTEEN  MONTHS  NOT  EXCESSIVE.— The 
Commission  has  expressed  the  view  that  a  transit  privilege  ex- 
tending through  a  period  of  more  than  one  year  is  prima  facie 
unreasonable.  (Ruling  204,  of  this  bulletin.)  Experience  has 
shown,  however,  that  as  apjilied  to  the  creosoting  of  lumber  a 
period  of  eighteen  months  is  not  unreasonably  long,  providing 
the  full  local  rates  on  the  inbound  material  are  required  to  be 
paid. 

233.  PARTIAL  UNLOADING  AT  INTERMEDIATE 
POINT  OF  SHIPMENTS.— Upon  inquiry  as  to  the  legality  of 
a  practice  permitting  the  stoppage  of  shipments  of  perishable 
commodities  at  points  short  of  destination  to  partly  unload:- 
Held,  That  the  practice  is  legal  only  when  authorized  under 
proper  tarifif  rules. 

234.  MISROUTING  RESULTING  IN  WRONG  TERMI- 
NAL DELIVERY. — A  carload  shipment  routed  by  the  con- 
signor in  order  to  get  particular  delivery  at  destination  reached 
the  wrong  delivery  tracks.  Instead  of  demanding  delivery  on 
the  right  tracks  the  consignee  moved  the  contents  of  the  car 
by  dray,  although  the  car  could  have  been  switched  to  the  proper 


Conference;  Rulings.  867 

tracks  without  additional  expense  to  the  shipper  had  he  given 

the  carrier  the  opportunity  to  do  so :  Held,  That  no  reparation 

could   be    allowed.      (Reaffirmed    by  Rulings    283,    286-d,    and 
392,  overruling  25.) 

235.  DRAYAGE  CHARGES.— Certain  shipments  were  de- 
livered at  destination  as  actually  routed  by  the  consignor,  but 
there  was  a  general  understanding  with  the  carrier,  not  covered 
by  tariff  provision,  that  traffic  should  be  diverted  at  a  certain 
point  in  order  to  accommodate  consignees  located  near  certain 
team  tracks  on  the  delivering  line.  The  agent  having  failed  to 
divert  the  shipments  at  that  point  the  consignees  were  subjected 
to  extra  drayage  charges :  Held,  That  the  claim  for  a  refund 
must  be  rejected.      (See  Rulings  20  and  234.) 

236.  CLAmS  MAY  NOT  LAWFULLY  BE  PAID  UN- 
TIL THEY  HAVE  BEEN  INVESTIGATED.— The  Commis- 
sion adheres  to  Rule  68  of  this  bulletin,  to  the  effect  that  it  is 
not  a  proper  practice  for  railroad  companies  to  adjust  claims 
immediately  upon  presentation  and  without  investigation.  The 
fact  that  shippers  may  give  a  bond  to  secure  repayment  in  case, 
upon  siibsequent  examination,  their  claims  prove  to  have  been 
improperly  adjusted  does  not  justify  the  practice.  Carriers  that 
have  adopted  that  practice  will  be  expected  promptly  to  dis- 
continue it.      (See  also  Ruling  15.) 


November  2^,   iQog. 

237,  REFUND  ON  SHIPMENT  FORWARDED  TO  ER- 
RONEOUS DESTINATION  THROUGH  CONSIGNOR'S 
ERROR. — A  car  of  coal  was  forwarded  to  the  destination  named 
in  the  bill  of  lading,  l)Ut  the  carrier  not  being  able  to  find  the 
consignee,  and  learning  that  a  company  of  the  same  name  at  a 
near-by  point  was  tracing  a  coal  shipment,  reconsigned  it  to 
that  j)oint  without  consulting  the  consignor,  and  that  sul)se- 
quently  proved  to  be  the  correct  destination  :  Held,  'J'hat  a  re- 
fund might  be  allowed  u])on  showing  that  the  additional  trans- 
portation expense   fell  on  the  consignor. 

In  this  connection  the  general  ]M'inciple  is  expressed  in  the 
following  rule:  If  a  shi]Dper  sends  a  shipment  to  an  erroneous 
destination  he  should  have  the  right  to  guard,  so  far  as  possible, 


868  Conference  Rulings. 

against  resulting  loss  by  disposing  of  the  shipment  at  that  point 
The  carrier  should  not,  therefore,  forward  such  shipment  to  an- 
other destination  with  attendant  additional  transportation  charges 
without  having  made  reasonal)le  effort  to  secure  dis])osition  in- 
structions from  the  shipper. 


December  6,   ipop. 

238.  REFUND  OF  FARE  PAID  FOR  NE\^■  TICKET 
WHEN  LIMITED  TICKET  ORIGINALLY  PURCHASED 
HAS  BEEN  LOST  OR  DESTROYED.— If  a  limited  passen- 
ger ticket  is  lost  or  destroyed  before  being  used  (and  no  error 
or  neglect  of  a  carrier's  agent  is  involved),  it  is  not  unlawful 
for  the  carrier,  after  the  limit  of  the  ticket  has  expired,  to  re- 
fund to  the  passenger  the  extra  fare  paid  as  a  result  of  such 
loss  or  destruction,  provided  the  loss  or  destruction,  the  identity 
of  the  claimant  as  the  original  holder,  and  the  fact  that  the  ex- 
tra fare  was  paid  for  travel  by  the  original  holder  over  the  route 
and  within  the  limit  of  the  lost  ticket,  are  clearly  and  definitely 
|)roved  in  a  form  that  becomes  a  part  of  the  record  in  the  case ; 
and  provided  it  is  clearly  shown  that  such  ticket  has  not  been 
used  or  redeemed  by  any  other  person.  Such  action  should  be 
withheld  for  a  sufficient  period  of  time  properly  and  reasonably 
to  guard  against  the  lost  ticket  being  redeemed  or  used  by  some 
person  other  than  the  original  holder.  ( Compare  Rulings  76 
and  247. ) 

239.  COXFLICTING  RATES— LOWEST  RATE  IS  THE 
LEGAL  RATE. — A  carrier  in  reissuing  a  taritf  brought  for- 
ward certain  rates  originally  named  in  a  previous  tariff,  and  also 
slightly  increased  the  rates  named  between  the  same  points  on 
the  same  commodity  in  a  supplement  to  the  previous  tariff" :  Held. 
That  where  a  tariff  contains  conflicting  rates  the  lower  or  lowest 
of  the  rates  so  published  is  the  legal  rate.  (Compare  Rulings 
50,  70,  and  104.) 

240.  SWITCHING  MO\"E-MEXT  ANALOGOUS  TO  AN 
ASTRAY  MOVEMENT.— The  yardmen  of  an  interstate  car- 
rier being  under  the  impression  that  a  loaded  car  was  empty 
delivered  it  to  a  switching  road  by  which  it  was  switched  to  a 


CONFEREXCE  RULIXGS.  869 

loading  point,  and  the  error  being  there  discovered  it  was  thence 
switched  back  :  Held,  That  while  the  switching  hne  may  treat 
the  shipment  as  analogous  to  an  astray  movement  and  on  that 
account  may  waive  its  charges  if  it  desires  to  do  so,  it  may 
nevertheless  lawfully  demand  and  collect  of  the  carrier  that 
made  the  error  its  lawful  rates  for  the  service  performed.  (See 
Ruling  217.) 

241.  A  CANAL  BOAT  LINE  ENGAGED  IN  THROUGH 
MOVEMENTS  IN  CONNECTION  WITH  A  RAIL  LINE 
IS  SUBJECT  TO  THE  ACT  AND  MUST  FILE  TARIFFS. 
— A  canal  boat  line  carrying  traffic  moving  from  New  York 
City  to  Canadian  points  under  an  arrangement  for  through  move- 
ment, the  traffic  being  transferred  to  a  rail  line  at  Buffalo  by  its 
own  agents  or  the  agents  of  the  railroad,  is  a  common  carrier 
under  the  act  and  must  file  tariff's  with  the  Commission. 

242.  UNIFORM  DEMURRAGE  RULES  AND  PRAC- 
TICES.— Recognizing  the  great  benefits  to  be  derived  from 
uniformity  of  car-service  rules,  the  Commission  endorses  the 
code  which  was  reported  to  the  National  Association  of  Rail- 
way Commissioners  and  by  that  association  recommended  to 
the  state  and  interstate  commissions,  it  being  understood  that 
this  action  is,  of  course,  subject  to  the  right  of  the  Commission 
to  incjuire  into  the  legality  or  reasonableness  of  any  rule  or 
rules  which  may  be  the  subject  of  complaint,  and  that  announce- 
ment to  that  effect  be  made  with  the  Code  of  Demurrage  Rules. 

In  view  of  the  exhaustive  investigation  upon  which  the  Demurrage 
Code  is  based,  it  is  to  be  understood  as  controlling  in  cases  where 
any  conference  rulftig  previously  made  conflicts  with  any  of  its  pro- 
visions.     (See    Ruling   313.) 

243.  ROUTING  INSTRUCTIONS  WITH  AND  WITH- 
OUT NAMING  THE  RATE.— -A  shipment  was  routed  through 
a  certain  junction  by  the  consignor,  but  on  the  papers  presented 
to  the  Commission  it  did  not  clearly  api)ear  whether  he  also 
named  the  rate  that  had  been  available  through  that  junction 
but  was  canceled  shortly  before  the  movement.  The  instruc- 
tions were  com])lied  with  by  the  carrier  and  the  new  and  higher 
rate  applied :  Held,  That  this  was  a  shipper's  error  and  the 
higher  rate  must  be  collected  unless  he  also  named  in  the  bill 


870  ConferKncr  Rulings. 

of  lading  tlie  lower  rate  legally  in  effect  through  another  junc- 
tion, in  which  case  carrier  was  liable.     (See  Ruling  286-/.) 

December  7,  igog. 

244.  REDUCED  RATES  ON  PROPERTY  FOR  THE 
UNITED  STATES  OR  MUNICIPAL  GOVERNMENTS.— 
Rule  61  of  Tariff  Circular  17- A  and  Ruling  65  of  Bulletin 
No.  3  (Ruling  65  herein)  are  hereby  withdrawn  and  the  previ- 
ous ruling  of  February  4,  1908,  reported  as  Ruling  36  of  this 
l)ulletin,  is  restored.     (See  Rulings  208-^  and  311.) 


December  /•?,  /pop. 

245.  FREE  TRANSPORTATION  OF  PERSONS  UN- 
DER SECTION  22. — There  is  nothing  in  the  provisions  of  sec- 
tion 22  of  the  act  relating  to  free  or  reduced  rate  transportation 
to  warrant  carriers  in  according  free  transportation  to  scientists 
or  otiier  employees  of  a  public  museum. 

246.  COMPLAINTS  FILED  BY  TRAFFIC  OR  CREDIT 
BUREAUS. — While  it  is  the  policy  of  the  Commission  to  en- 
tertain complaints  instituted  on  behalf  of  shippers  by  traffic 
or  credit  bureaus,  in  all  such  cases  where  reparation  is  awarded, 
the  order  will  recjuire  payment  to  be  made  by  the  defendant 
carriers  either  to  the  consignor  or  the  consignee,  as  their  in- 
terests may  appear.     (Amended  by  Ruling  362.) 


December    14,    ipop. 

247.  PASSENGER  TICKET  LOST  BY  CARRIER 
THROUGH  ERROR.— Through  error  a  carrier's  agent  so 
punched  a  round-trip  ticket  to  New  York  as  to  limit  its  use  to 
October  14  instead  of  October  17.  The  holder  at  destination 
requested  a  correction,  the  ticket,  being  sent  back  for  that  pur- 
pose by  the  passenger  agent,  was  lost  in  the  mails.  The  initial 
carrier's  agent  at  New  York  secured  from  its  connection  a  re- 
turn ticket  in  lieu  of  the  lost  ticket.  It  now  asks  that  its  con- 
nections l)e  authorized  to  accept  report  of  this  ticket  without 
revenue :  Held,  H^hat  the  initial  carrier  must  pay  the  cost  of 
the  return  ticket.  (Compare  Ruling  238;  see  Rulings  113.  167, 
266,  and  277.) 


CoNFEREKCK  Rulings.  871 

January  ^,  iqio. 

248.  COLLECTION  OF  ESTABLISHED  RATES  OX  RE- 
CALLED SHIPMENT.— A  shipment  had  moved  150  miles 
from  the  point  of  origin  before  the  consignor  discovered  that 
an  error  had  been  made  in  filHng  the  consignee's  order.  On  in- 
quiry by  telephone  he  was  informed  by  the  carrier's  clerk  that 
the  car  could  be  returned  without  extra  charge ;  and  thereupon 
the  consignor  requested  its  return  for  a  correction  of  the  loading. 
A  part  of  the  carload  was  exchanged,  the  shipment  was  again 
billed  out  and  moved  to  destination :  Held,  That  the  Commis- 
sion can  not  relieve  the  carrier  from  the  obligation  of  collecting 
the  published  rates  for  all  the  movements  actually  made. 

249.  OUTBOUND  CHARGES  ON  A  SHIPMENT  MAY 
NOT  BE  REFUNDED  BY  THE  CARRIER  AND  CHARGED 
BACK  AGAINST  THE  CONSIGNOR.— A  shipment  having 
been  accepted  by  the  consignee  at  destination  and  removed  to 
his  place  of  business  was  subsequently  returned  to  the  delivering 
carrier,  the  outbound  charges  were  refunded  and  included  in  the 
return  waybill  as  advance  charges.  L'pon  delivery  of  the  re- 
turned shipment  to  the  original  consignor  the  return  charges, 
as  well  as  such  advance  charges,  were  demanded  and  collected : 
Held,  That  the  published  rate  for  the  return  movement  was  the 
only  charge  that  carrier  could  lawfully  exact  from  the  original 
consignor. 

250.  DEMURRAGE  ON  CARLOAD  SHIPMENT  TRANS- 
FERRED INTO  TWO  CARS.— When  a  shipment  leaves  a 
point  of  origin  in  a  single  car  and  for  the  convenience  of  the 
carriers  is  transferred  in  transit  into  two  cars  and  is  subsequently 
detained  by  consignee  at  destination  beyond  the  free  time,  de- 
murrage should  be  assessed  as  for  one  car  only,  so  long  as  either 
car  is  detained.  (Affirmed  in  Ruling  339;  amended  1)\-  Ruling 
Zti7 .    Com])are  Ruling  27?). ) 

January  jo,  igio. 

251.  NO  REPARATION  OX  BASIS  OF  RATE  NOT 
FILED. — The  Commission  will  not  recognize,  as  a  basis  for 
reparation,  any  rate  that  is  not  on  file  with  it. 

252.  DESTRUCTION  OF  DOC  LAMENTS.— The  destruc- 
tion of  canceled  tariffs  that  have  been  posted  at  the  stations  of  a 


872  Conference  Rulings. 

carrier  as  recjiiired  by  law  is  not  regarded  by  the  Commission 
as  an  offense  under  section  20  of  the  act  so  long  as  a  copy  of  the 
same  tariff"  is  preserved  by  the  carrier  in  its  general  files.  (  See 
general  orders  of  Commission  relating  to  preservation  and  de- 
struction of  records. ) 


February  j,  igio. 

253.  AlISROUTING  THROUGH  ERROR  OF  JOINT 
AGENT  OF  TWO  CARRIERS.— A  shipment  originating  on 
one  line  and  not  routed  by  the  shipper  reached  a  junction  point 
with  another  line  where  a  joint  agent  was  maintained.  Instead 
of  delivering  the  shipment  to  the  other  line  at  that  point,  the 
joint  agent  permitted  it  to  go  forward  on  the  originating  line 
to  another  junction  point  with  the  second  line,  over  which  route 
the  charges  were  substantially  higher  than  if  the  second  line 
had  taken  the  shipment  at  its  first  junction  with  the  originating 
carrier:  Held,  That  although  the  agent  was  a  joint  agent,  he 
was,  with  respect  to  this  shipment,  acting  as  agent  for  the  orig- 
inating carrier,  and  the  cost  of  his  error  should  be  borne  by  that 
line  alone.     (  See  Ruling  286.) 

254.  NO  REFUND  ON  THE  BASIS  OF  A  RATE  NOT 
EFFECTR^E. — Through  inadvertence  a  carrier  quoted  a  north- 
bound rate  of  26  cents  instead  of  a  southbound  rate  of  29.5 
cents.  A  sale  having  been  effected  on  the  basis  of  the  rate  quoted, 
application  is  made  for  authority  to  refund  on  that  basis.  \\'ithin 
a  few  months  after  the  date  of  the  movement  the  southbound 
rate  \vas  reduced  to  17  cents:  Held,  That  reparation  on  the 
basis  of  the  northbound  rate  must  be  denied,  btit  that  an  applica- 
tion for  authority  to  refund  on  the  basis  of  the  subsequently  es- 
tablished southbound  rate  would  be  entertained. 

255.  FREE  TRANSPORTATION  OF  HOUSEHOLD 
GOODS  OF  E^IPLOYEES.— Upon  inquiry,  Held,  That  a  car- 
rier can  not  lawfully  transport  free  of  charge  and  deliver  to  a 
connection  the  household  goods  of  an  employee  who  has  left  its 
service  to  accept  a  position  with  another  carrier.  (  Reaffirming 
Ruling  109;  see  also  Ruling  208-/7.) 

256.  THE  LOWEST  COMBINATION  OF  RATES  IS 
THE    LAWFUL    CHARGE,    IN    THE    ABSENCE    OF    A 


Conference  Rulings.  873 

JOINT  THROUGH  RATE,  ONLY  WHEX  BOTH  FAC- 
TORS ARE  FILED  WITH  THIS  CO^nilSSIOX.— Upon  a 
movement  from  a  domestic  point  to  a  destination  in  Canada 
charges  were  assessed  at  a  combination  of  rates  both  factors  of 
which  were  on  file  with  this  Commission  but  which  made  higher 
than  another  combination  over  the  same  route  one  factor  of  which 
was  on  file  with  the  Canadian  Commission  but  not  with  this 
Commission :  Held,  That  the  Commission  can  not  award  repa- 
ration on  the  latter  combination.  (See  Rule  5,  Tariff  Circular 
18-A.) 

257.  COMMISSARY  CAR  OPERATED  BY  A  CARRIER 
UNLAWFUL. — A  carrier  for  25  years  has  operated  a  com- 
missary car  making  two  trips  monthly  with  a  staple  line  of  meats, 
groceries,  and  a  restricted  stock  of  shoes,  overalls,  and  other 
wearing  apparel.  The  sales  are  limited  to  employees  of  the 
company  and  their  immediate  families  and  are  not  made  for 
cash  but  on  tickets  signed  by  the  company  foreman  showing  the 
amount  of  wages  due  the  holder.  The  purchases  are  limited 
to  two-thirds  of  this  amount :     Held,  That  the  practice  is  illegal. 

L'pon  a  subsequent  further  consideration  of  this  incfuiry  it  was 
Held,  That  the  operation  of  such  a  car  is  in  violation  of  the  com- 
modities clause  of  the  act  and  also  in  violation  of  sections  2  and 
3  in  that  such  a  practice  unjustly  discriminates  against  other 
persons  who  pay  full  tariff  rates  for  the  same  service. 

258.  WAR^ER  OF  UNDERCHARGES.— With  respect  to 
shipments  that  move  on  and  after  March  1,  1910,  it  will  be  the 
policy  of  the  Commission  not  to  authorize  the  waiver  of  any  un- 
collected undercharge  that  is  not  brought  to  the  attention  of  the 
Commission  within  30  days  after  the  date  of  the  delivery  of  the 
shipment. 

259.  FREE  TRANSPORTATION  FOR  RED  CROSS  SO- 
CIETY.— Upon  inquiry  it  was  Held.  That  interstate  carriers 
would  not  be  in  violation  either  of  section  1  or  section  22  in  ac- 
cording free  transportation  to  a  car  occupied  by  the  American 
National  Red  Cross  Society  and  its  attendants  when  traveling 
for  the  purpose  of  giving  courses  of  instruction  looking  to  the 
prevention  of  accidents  in  mines  and  factories  and  on  railroads 
and  trolley  lines,  and  of  methods  for  first  aid  to  the  victims  of 


874  CoxNfericnce;  Rulings. 

such  accidents,  the  car  being  used  also  for  displaying  approved 
safety  appliances  and  illustrating  methods  followed  in  relief 
work. 

260.  THE  CREDENTIALS  OF  EXA^IINERS  OF  THE 
COMMISSION  MUST  BE  HONORED  BY  CARRIERS 
WHETHER  PRESENTED  WITH  OR  WITHOUT  SPE- 
CIAL LETTERS  OF  ADVICE.— While  it  has  been  the  practice 
of  the  Commission  when  examining  the  accounts  of  interstate 
carriers  through  the  board  of  examiners  attached  to  the  Bureau 
of  Statistics  and  Accounts,  to  give  notice  in  advance  to  carriers, 
this  is  done  for  the  convenience  of  the  CouTmission  and  of  the 
carriers,  and  is  not  a  requirement  imposed  upon  the  Commission 
by  the  law.  The  credentials  of  an  examiner  are  all  that  is  neces- 
sary to  entitle  him  to  free  and  full  access  to  the  carrier's  records, 
whether  at  its  general  offices  or  at  a  station  or  elsewhere,  and  the 
refusal  to  give  access  on  the  presentation  of  such  credentials  by 
an  examiner  is  in  violation  of  the  law.  The  Commission,  except 
in  sjiecial  cases  where  another  course  is  desirable,  will  continue 
to  give  previous  notice  of  any  such  examination  in  writing,  un- 
less the  refusal  of  the  carriers  to  honor  the  credentials  of  exam- 
iners when  presented  without  such  notice  shall  make  it  neces- 
sary to  withdraw  the  practice. 


February  c?,  ipio. 

261.  DEMURRAGE  ACCRUING  BECAUSE  OF  CAR- 
RIERS FAILURE  TO  NOTIFY  CONSIGNEE.— Although 
the  tariffs  of  a  carrier  provided  that  it  would  not  accept  ship- 
ments consigned  to  "Shipper's  Order,  Notify"  where  the  party 
to  be  notified  is  not  located  at  destination,  it  nevertheless  ac- 
cepted such  a  shipment,  and  because  of  its  failure  on  the  transfer 
billing  to  note  the  shipper's  instructions  to  notify  the  consignee 
at  a  distant  point  demurrage  accrued  at  destination :  Held,  That 
the  claim  has  no  standing  except  upon  the  carrier's  admission 
that  its  tariff  rule  was  unreasonable  and  a  showing  that  it  has 
been  changed ;  and  if  presented  under  such  conditions  and  acted 
upon  favorably,  the  order  would  require  the  maintenance  of  the 
newly  established  rule  for  a  period  of  one  year. 

262.  MISQUOTATION  OF  CANADIAN  RATES.— Upon 

iufjuiry  as  to  the  rates  on  a  locomotive  "on  cars,"  from  a  point 


CoNFERExcE  Rulings.  875 

in  New  York  to  a  point  in  the  Province  of  Quebec,  the  carrier 
quoted  a  rate  to  Sherbrooke  and  a  7-cent  local  rate  beyond,  at 
20  per  cent  less  than  the  actual  weight.  Charges  were  collected 
upon  that  basis  and  the  carrier  now  applies  to  the'  shipper  for 
payment  of  an  undercharge  arising  out  of  the  fact  that  the  tariff 
naming  the  rate  beyond  Sherbrooke  contains  no  provision  for  a 
deduction  from  the  actual  weight  of  the  shipment.  The  shipper 
makes  the  point  that  the  rate  beyond  Sherbrooke  is  a  Canadian 
rate  and  that  the  domestic  carrier  is  therefore  not  prohibited  by 
the  act  from  adjusting  the  charges  on  the  basis  of  the  rate  quoted 
by  it:  Held,  That  it  would  be  a  violation  of  law  to  omit  the  col- 
lection of  the  undercharge. 


February  14,  igio. 

263.  FREE  INTERSTATE  TRANSPORTATION  TO  OF- 
FICERS AND  EMPLOYEES  OF  BRIDGE  COMPANIES.— 
Upon  inquiry  by  an  interstate  carrier  whether  free  transportation 
may  lawfully  be  accorded  to  the  officers  and  employees  of  a 
bridge  company  which  makes  annual  reports  but  files  no  tariffs 
and  collects  no  charges  from  shippers  or  passengers:  Held,  That 
free  transportation  may  not  lawfully  be  accorded  to  the  officers 
and  employees  of  a  nonoperating  company.  (See  Rulings  95  and 
355.) 

The  fact,  subsequently  developed,  that  trains  move  over  the 
bridge  only  on  signal  and  telegraphic  orders  by  employees  of 
the  bridge  company  was  held  not  to  be  sufficient  ground  for 
modifying  the  ruling. 

264.  CARLOAD  AlINIMUM  UNDER  A  JOINT 
THROUGH  RATE.— A  tariff  named  through  carload  rate  from 
A  to  D  of  $1  and  provided  that  as  to  30  cents  of  the  rate  the 
minimum  weight  should  be  20,000  pounds  and  as  to  70  cents  of 
the  rate  the  minimum  should  be  12,000  ])ounds.  The  Commission 
declined  to  entertain  an  informal  reciuest  for  reparation  on  the 
basis  of  that  rate  until  the  tariff  was  changed ;  and  it  was  said 
that  if  the  tariff  were  not  changed  a  formal  comi)laint  would  be 
entertained :  Held  also.  That  where  two  or  more  carriers  pub- 
lish a  joint  through  rate  they  must  publish  in  connection  there- 
with one  carload  minimum  weight  for  the  through  movement 
under  that  rate.     This  ruling  is  not  to  be  understood,  however, 


876  Conference;  Rulings. 

as  condemning  the  publication  in  joint  tariffs,  and  the  use  of 
through  rates  made  up  in  comibination  on  a  specific  base  point 
and  providing  one  minimum  weight  in  connection  with  the  speci- 
fied portion  of  the  rate  up  to  the  base  point  and  a  different  mini- 
mum weight  in  connection  with  the  specified  portion  of  the  rate 
beyond  the  base  point. 

February  if,  igio. 

265.  REFUND  OF  PORTIOX  OF  UNUSED  PASSEN- 
GER TICKET. — A  man  and  wife  holding  round-trip  tickets 
embracing  a  stopover  privilege  at  an  intermediate  point  returned 
from  that  point  without  completing  the  rest  of  the  journey.  The 
tariff  naming  the  excursion  rate  under  which  the  tickets  were  sold 
also  named  an  excursion  rate  to  that  intermediate  point  and  re- 
turn and  prescribed  the  same  conditions  :  Held,  That  the  case 
falls  within  Ruling  76  of  this  bulletin.  (Affirmed  by  Ruling  303; 
see  also  Ruling  115.) 

March  7,  igio. 

266.  REFUND  ON  PASSENGER  TICKET.— In  selling  a 
round-trip  ticket  the  carrier's  agent  neglected  to  punch  the  return 
limit  in  the  margin.  The  ticket  was  used  on  the  going  journey 
in  accordance  with  its  conditions.  The  tariff  permitted  a  stop- 
over at  an  intermediate  point  on  the  return  journey.  When  the 
holder  presented  the  ticket  for  validation  that  agent  punched  a 
return  limit  in  the  margin,  which  rendered  the  ticket  useless  ex- 
cept for  continuous  passage  back  to  the  point  of  origin.  Not 
observing  this  limitation,  the  passenger  stopped  over,  and  upon 
presenting  the  ticket  at  that  point  the  agent  marked  it  'A  oid," 
thus  compelling  the  holder  to  purchase  a  ticket  from  that  point 
to  his  home.  He  arrived  there  within  the  time  limit  under  which 
the  original  ticket  was  sold,  having  traveled  also  over  the  route 
named  in  the  tariff  and  otherwise  complied  with  its  conditions : 
Held,  That  the  holder  was  entitled  to  a  refund  of  the  excess  fare 
paid  on  account  of  the  carrier's  error,  each  of  the  carriers  to 
reserve  the  earnings  due  it  under  the  round-trip  ticket.  (See 
Rulings  113,  167,  266,  and  27'/:) 

267.  GRAIN-DOOR  ALLOWANCES.— Tariffs  authorizing 
allowances  for  grain  doors  do  not  conform  with  Ruling  7%  of  this 


Conference  Rulings.  877 

bulletin  unless  they  state  both  the  maximum  allowances  per  car 
and  the  maximum  allowance  per  grain  door.     (  See  Ruling  132. ) 

268.  CARRIERS  AIAY  NOT  DEFEAT  THEIR  PUB- 
LISHED THROUGH  FARES  WITH  PARTY  RATE  TICK- 
ETS.— The  tariffs  of  certain  carriers  provide  a  10-party  fare 
from  A  to  B  but  no  such  fare  from  B  to  C.  Upon  inquiry 
whether  it  would  be  legal  to  ticket  a  party  of  ten  from  A  to  C 
on  the  basis  of  the  party  fare  from  A  to  B  and  the  individual 
fares  from  B  to  C  when  such  combination  makes  less  than  the 
joint  through  individual  fare  from  A  to  C  :  Held,  That  while  a 
party  of  ten,  acting  on  their  own  initiative  would  have  the  right 
to  use  the  party  fare  from  A  to  B  and  to  purchase  such  trans- 
portation as  is  available  from  B  to  C,  the  carriers  may  not  ticket 
them  through  from  A  to  C  on  such  a  combination  and  thus  de- 
feat their  own  published  through  fare. 

269.  PUBLISHED  DIVISIONS  OF  THROUGH  RATES 
TO  AND  FROM  MENICO.— The  purpose  of  Rule  72  of  Tariff 
Circular  No.  18- A  requiring  the  domestic  carriers  to  publish  their 
divisions  of  rates  to  and  from  Mexico  is  to  give  to  this  Commis- 
sion definite  information  as  to  their  lawful  earnings  and  was 
not  intended  as  a  means  of  exercising  any  jurisdiction  over  car- 
riers in  Mexico.     (See  Ruling  209.) 

270.  DERRICK  AND  SIMILAR  CONSTRUCTION  CARS 
ARE  NOT  ORDINARILY  SUBJECT  TO  DEMURRAGE 
CHARGES. — In  the  absence  of  specific  tariff  provision  therefor 
demurrage  does  not  accrue  on  derrick  cars,  pile-driver  cars,  and 
similar  cars  that  are  not  and  ordinarily  can  not  be  unloaded, 
when  owned  or  leased  by  a  contractor  doing  construction  work 
on  the  line  of  the  carrier  concerned,  or  when  standing  upon 
storage  tracks.     (Qualifying  Ruling  222;  see  also  Ruling  123.) 

March  8,  igio. 

271.  DESTRUCTION  OF  DOCUMENTS.— The  regula- 
tions of  the  Commission  respecting  the  preservation  and  destruc- 
tion of  the  records  and  documents  of  common  carriers  also  apply 
to  the  records  -and  documents  of  all  joint  agencies  maintained  by 
or  on  Ix'half  of  carriers  subject  to  the  act. 


878  COXFKREXCR   RULIXGS. 

March  i_f,  ipio. 

272.  EXCURSION  OF  CO.MMERCIAL  ASSOCIATION 
AT  EXPENSE  OF  CARRIER.— The  Commission  can  not  sanc- 
tion a  proposed  interstate  excursion  for  certain  commercial  clubs, 
the  members  of  which  are  to  be  carried  at  the  expense  of  the 
railroad  comj^any  and  as  its  guests. 


March  ij.  igio. 

273.  SHIPMENT  TRANSFERRED  IN  TRANSIT  FROM 
ONE  LARGER  CAR  TO  T\\'0  SMALLER  CARS.— For  a 
through  shipment  of  an  emigrant  outfit  the  initial  carrier,  at  the 
request  of  the  consignor,  furnished  a  40-foot  car  which  became 
out  of  order  while  on  its  line.  At  the  junction  point  the  connect- 
ing carrier  transferred  the  shipment  into  two  36-foot  cars,  and 
in  that  form  it  moved  to  destination  on  the  line  of  a  third  car- 
rier. There  was  no  joint  through  rate,  but  the  second  and  third 
carriers  maintained  a  rate  for  a  36-foot  car,  all  weight  in  excess 
of  a  given  minimum  to  be  charged  for  proportionately,  the  tarifif, 
however,  expressly  forbidding  the  use  of  larger  equipment.  At 
destination  charges  were  collected  on  the  basis  of  two  carloads 
from  the  point  of  transfer :  Held,  That  in  transferring  the  ship- 
ment, the  connecting  carrier  ought  to  have  loaded  the  full  mini- 
mum w^eight  into  one  car  and  to  have  adjusted  the  charges  on 
the  balance  of  the  shipment  in  the  second  car  at  the  less-than- 
carload  rate.     (  Compare  Ruling  250. ) 

274.  LARGER  CAR  FURNISHED  AT  CON\'ENIENCE 
OF  INITIAL  LINE  UNDER  TARIFF  AUTHORITY  FOR 
APPLYING  THE  AIINLMU.M  ON  THE  SMALLER  CAR 
ORDERED,  CONNECTING  LINE  NOT  PUBLISHING 
SUCH  PROVISION. —  (a)  Complaints  of  alleged  overcharges 
arise  in  connection  with  shipments  that  move  over  the  lines  of 
two  or  more  carriers  under  combination  rates,  the  initial  carrier 
having  a  provision  in  its  tariflf  that  in  case  a  car  of  certain  di- 
mensions or  capacity  is  ordered  by  a  shipper,  and  the  carrier  for 
its  ow-n  convenience  furnishes  a  larger  car,  such  larger  car  may 
be  used  on  the  basis  of  the  minimum  weight  applicable  to  the  car 
ordered,  while  the  connecting  carrier  does  not  have  such  tariff 
provision  and  therefore  charges  for  the  full  minimum  weight  ap- 
plicable to  the  car  used.    See  Rule  66  of  Tariff  Circular  18-A.) 


Conference  Rulings.  879 

(b)  The  law  imposes  ui:)on  carriers  the  obHgation  of  arrang- 
ing to  every  reasonable  extent  for  through  carriage  and  through 
shipment.  Neither  the  burden  of  following  his  shipment  to  a  con- 
necting point  between  two  carriers  and  there  transferring  it,  nor 
of  bearing  the  expense  of  such  transfer,  can  be  laid  upon  the 
shipper.  It  is  not  deemed  reasonable  that  in  a  case  of  this  kind 
the  shipper  should  be  recjuired  to  pay  higher  charges  than  he 
would  have  paid  had  the  initial  carrier  furnished  the  ecjuipment 
that  is  provided  for  in  its  tariff  and  that  was  ordered  by  the 
shipper.  The  carriers  in  the  different  classification  territories 
ought  to  have,  and  should  provide  at  the  earliest  practicable  mo- 
ment, a  uniform  rule  on  this  subject. 

(c)  It  is  believed  that  where  the  initial  carrier  provides  in  its 
tariffs  that  if  for  its  own  convenience  it  furnishes  a  car  larger 
than  that  ordered  by  the  shipper,  it  will  be  used  upon  the  basis 
of  minimum  weight  applicable  to  the  car  ordered,  and  the  con- 
necting carrier  to  or  over  whose  lines  such  shipment  is  moved  has 
not  such  provision  in  its  ^tariff,  the  initial  carrier  should  note  upon 
the  bill  of  lading  and  upon  the  way  bill  or  transfer  bill,  which  ac- 
companies delivery  of  a  shipment  to  its  connections,  the  fact  that 
car  of  certain  size  was  ordered  and  car  of  certain  size  was  for 
its  own  convenience  furnished  by  the  carrier  to  be  used  on  the 
basis  of  the  minimum  weight  applicable  to  the  car  ordered  ;  and 
that  connecting  c-arrier,  receiving  such  notice  on  the  way  bill  or 
transfer  bill  and  not  having  provision  in  its  tariff  which  permits 
the  use  of  the  car  on  the  basis  of  the  lower  minimum  weight, 
should  transfer  the  shipment  into  car  of  the  size  or  capacity  or- 
dered by  the  shipper  or  into  car  to  which  the  same  minimum 
weight  a])plies,  without  additional  expense  to  the  shipper. 

This  ruling  outlines  the  policy  which  the  Commission  will  fol- 
low in  cases  of  this  nature  which  may  be  brought  before  it.  It 
is,  of  course,  understood  that  ship]ier  may  not  demand  any  car 
that  is  not  i)rovided  for  in  the  initial  carrier's  tariff.  (Sec  Ruling 
339.) 


.//t//  /,  igio. 

275.  [TDL'RS  OF  SKR\'ICE  L AW— TR.AIX  ]5.\GGA(^.b:- 
MEX. — The  provisions  of  section  1  of  the  hours  of  service  law 
apply  to  train  l)aggagemen  who  are  em])loyees  of  the  railway 
company  and  who  are  required  by  the  rules  of  the  company  to 


880  CoxKKRExcE  Rulings. 

perform  or  to  hold  themselves  in  readiness,  when  called  upon, 
to  perform  any  duty  connected  with  the  movement  of  any  train. 
(See  Rulings  74  and  287.) 

276.  DEMURRAGE  CHARGES— TARIFF  AUTHORITY 
THEREFOR. — A  consignor  while  loading  cars  at  the  point  of 
origin  detained  them  for  several  days  before  they  were  billed  out 
for  movement  to  interstate  destinations.  The  initial  carrier  is- 
sued a  tariff  providing  for  demurrage,  but  the  tariff'  naming  the 
rate  applicable  on  the  movements  neither  provided  demurrage 
charges  nor  referred  to  the  initial  carrier's  tariff  where  such 
charges  were  specified :  Held,  That  there  was  sufficient  tariff 
authority  for  the  collection  of  the  charges  by  the  initial  carrier. 

277.  ERROR  IX  THE  ISSUANCE  OF  PASSENGER 
TICKETS. — The  Commission  adheres  to  its  formerly  expressed 
view  that  connecting  lines  are  entitled  to  "divisions  according  to 
the  transportation  which  they  honor  on  presentation  by  the  trav- 
eler, and  therefore  that  a  carrier  whose  agent  had  made  an  error 
in  not  properly  punching  half-fare  and  lower-class  tickets  must 
bear  the  full  burden  of  the  mistake.  (See  Rulings  69,  113.  167, 
247,  and  266. ) 

278.  FREE  TRANSPORTATION  TO  TRAA^ELING  SEC- 
RETARIES OF  Y.  W.  C.  A.— Under  the  provisions  of  the  act 
free  or  reduced  rate  transportation  may  not  lawfully  be  accorded 
to  traveling  secretaries  of  a  Young  A\'oman's  Christian  Associa- 
tion. 


April  5,  igio. 

279.  APPLICATION  OF  RATES  ON  ARTICLES  SOLD 
UNDER  TRADE  NAMES.— A  compound  described  under  its 
technical  chemical  name  in  the  tariff'  carrying  the  rate  is  offered 
for  shipment  and  sold  by  a  manufacturer  under  a  trade  name: 
Held,  That  while  the  packages  may  bear  the  trade  name  of  the 
article,  the  shipper  is  not  entitled  to  the  rate  applicable  on  the 
specified  compound  unless  the  packages,  as  tendered  for  trans- 
]:)ortation.  are  also  labeled  so  as  to  indicate  that  they  contain  the 
compound. 

280.  ESTIMATED  WEIGHTS  PER  PACKAGE.— Some- 
times a  transportation  rate  is  stated  to  be  a  certain  sum  per  pack- 


CoNFERENCK   Rulings.  881 

age,  and  sometimes  the  rate  is  stated  in  cents  per  100  pounds, 
and  it  is  provided  that  the  package  will  be  taken  at  a  stated  esti- 
mated weight.  Changes  in  size  or  dimensions  of  j)ackages  and 
disagreements  as  to  the  size  or  dimension  upon  which  the  esti- 
mated weight  was  fixed  have  caused  troublesome  complications. 
In  so  far  as,  and  whenever,  it  is  practicable,  the  size  and  dimen- 
sions of  such  packages  should  be  clearly  and  accurately  described 
and  defined  in  the  tarifif. 


April  II,  igio. 

281.  A  CON'CURRENCE  BY  OXE  CARRIER  IX  THE 
TARIFFS  OF  AXOTHER  DOES  XOT  LEGALIZE  THE 
USE  BY  THE  FORMER  OF  THE  LOCAL  RATES  OF  THE 
LATTER. — ^A  tarifif  published  by  one  carrier  in  addition  to  cer- 
tain joint  through  rates  also  named  local  rates  between  two 
points  on  its  line  that  were  also  served  by  the  lines  of  another 
and  concurring  carrier :  Held,  That  the  local  rates  of  the  car- 
rier that  published  the  tarifif  could  not  be  recognized  as  the  rates 
of  the  concurring  carrier  on  local  movements  between  the  two 
points  in  question. 

282.  JOIXT  RATE  REDUCED  TO  THE  SUM  OF  THE 
LOCALS,  MIXIMUM  WEIGHT  BEIXG  IXCREASED.— The 
charges  on  a  movement  were  collected  under  a  joint  rate  that 
exceeded  the  sum  of  the  locals,  but  which  was  subsequently  re- 
duced to  equal  the  lower  combination,  the  minimum  weight,  how- 
ever, being  increased.  The  carrier  ofifered  to  refund  on  the  basis 
of  the  new  through  rate  and  the  advanced  minimum  weight: 
Held,  That  in  such  cases  reparation  will  be  awarded  on  the  l)asis 
of  the  newly  established  joint  through  rate  at  the  carload  mini- 
mum weight  in  effect  at  the  time  of  the  movement,  subject,  of 
course,  to  actual  weight  when  higher  than  such  minimum.  (Res- 
cinded by  Ruling  338.) 


May  10,  igio. 

283.  DRAYAGE  CHARGE  RESULTIXG  FROM  MIS- 
ROUTIXG. — Routing  instructions  were  not  followed  with  the 
result  that  the  shipment  arrived  and  was  accepted  at  a  pier  in 
New  York  City  more  distant  from  the  consignee's  place  of  busi- 
ness than  the  designated  ])ier:     Held.  That  the  claim  for  repara- 


882  Conference;  Rulings. 

tion  on  the  basis  of  the  lower  cost  for  draying  the  goods  from 
the  specified  pier  must  he  denied.  ( Ruling  25  overruled ;  Ruling 
234  affirmed;  see  also  Rulings  286-d  and  392.) 

284.  IXTERP^RETATION  OF  MISROUTIXG  RULING 
NO.  24. — Ruling  190,  interpreting  present  Ruling  214  of  this 
bulletin,  holds  that,  considering  the  carrier's  liabilities  and  the 
marine  insurance  involved  in  a  riiovement  by  water,  the  carrier's 
agent  did  not  negligently  misroute  a  shipment  which,  in  the  ab- 
sence of  instructions  from  the  shipper,  he  routed  by  an  all-rail 
route.  Those  rules  did  not  attempt  to  diiTerentiate  between  all- 
rail  routes  and  car-ferry  routes ;  and  on  the  presentation  now  of 
that  cjuestion  it  is  Held,  That  in  the  absence  of  different  rates 
in  one  tariff  applying  via  all-rail  and  car-ferry  routes,  and  where 
break  of  bulk  is  not  necessary  or  directed,  car-ferry  routes  are 
understood  to  be  included  in  the  general  term  "all-rail."  (  Super- 
seded by  Ruling  316.) 

285.  FREE  TRANSPORTATION  FOR  THE  REAIAINS 
OF  AN  EX-EMPLOYEE.— The  Commission  finds  no  warrant 
in  law  for  holding  that  free  transportation  may  be  accorded  to  the 
remains  of  an  ex-employee  of  a  carrier  who  resigned  from  the 
service  some  time  prior  to  his  death.. 

286.  ADJUSTMENT  OF  CLAIMS  FOR  DAMAGES  RE- 
SULTING FRO:\I  THE  T^HSROUTING  OF  FREIGHT.— 
(a)  The  Commission  holds  that  it  has  exclusive  jurisdiction  over 
claims  for  damages  arising  from  the  misrouting  of  freight.  (  See 
Rulings  139  and  214. ) 

(b)  The  statute  of  limitations  embodied  in  section  16  of  the 
act  to  regulate  commerce,  as  amended,  governs  misrouting  claims, 
and  thereunder  the  Commission  is  without  jurisdiction  to  take 
cognizance  of  claims  presented  more  than  two  years  after  the 
delivery  of  shipments  at  destination. 

(c)  If  a  connecting  line  accepts  a  shipment  at  the  junction 
point  without  routing  instructions,  it  will  be  held  responsible 
for  any  excessive  charges  that  may  directly  accrue  from  its  error 
in  forwarding  the  shipment  to  destination  via  any  other  than  the 
cheapest  available  route.     (Amending  Rulings  137  and  199.) 

(d)  It  is  the  duty  of  a  carrier  to  make  delivery  in  accordance 
with  routing  instructions.     AMiere  such  routing  instructions  have 


CoNFURENCiv  Rulings.  883 

not  been  followed  and  delivery  is  tendered  at  another  terminal 
than  that  designated,  it  remains  the  duty  of  the  delivering  car- 
rier to  make  delivery  at  the  terminal  designated  in  routing  in- 
structions, either  by  a  switch  movement  or  by  carting.  In  either 
event  the  additional  cost  to  the  delivering  carrier  must  be  paid 
in  whole  by  the  carrier  guilty  of  misrouting.  In  case  the  carrier 
delivers  to  the  designated  terminal  by  wagon  or  dray  it  must 
employ  for  such  service  facilities  owned  or  contracted  for  by  it 
and  may  not  make  an  allowance  to  the  shipper  for  such  service. 
(Reaffirming  Ruling  283;  see  also  Ruling  392.) 

(e)  The  Commission  will  exercise  jurisdiction  to  award  dam- 
ages as  against  the  carrier  guilty  of  misrouting  to  the  extent  of 
the  additional  cost  thus  imposed  on  the  delivering  carrier. 

(/)  The  obligation  lawfully  rests  upon  the  carrier's  agent  to 
refrain  from  executing  a  bill  of  lading  which  contains  provisions 
that  can  not  lawfully  be  complied  with,  or  provisions  which  are 
contradictory,  and  therefore  impossible  of  execution.  When, 
therefore,  the  rate  and  the  route  are  both  given  by  the  shipper 
in  the  shipping  instructions,  and  the  rate  given  does  not  apply 
via  the  route  designated,  it  is  the  duty  of  the  carrier's  agent  to 
ascertain  from  the  shipper  whether  the  rate  or  the  route  given  in 
the  shipping  instructions  shall  be  followed.  The  carrier  will  be 
held  responsible  for  any  damages  which  may  result  from  the 
failure  of  its  agent  to  follow  this  course.  (Modifying  Rulings 
159,  186.  192.  2l4-i:  affirming  Ruling  231;  see  also  Rulings  243 
and  370. ) 


March  i6,  igoS. 

287.  THE  HOURS  OF  SERVICE  LAW.— (a)  The  provi- 
sion of  this  act  apply  to  all  common  carriers  by  railroad  in  the 
District  of  Columbia,  or  in  any  Territory  of  the  United  States, 
or  engaged  in  the  movement  of  interstate  or  foreign  traffic ;  and 
to  all  employees  of  such  common  carriers  who  are  engaged  in  or 
connected  with  the  movement  of  any  train  carrying  traffic  in  the 
District  of  Columbia,  or  in  any  Territory,  or  carrying  interstate 
or  foreign  traffic.     (  See  Ruling  56.) 

(/;)  Skc.  2.  The  re(|uirements  for  ten  consecutive  hours  oft 
duty  applies  only  to  such  employees  as  have  been  on  duty   for 


88-!-  Conference   Rulings. 

sixteen  consecutive  hours.  The  recjuirenient  for  eight  consecu- 
tive hours  off  duty  apphes  only  to  employees  who  have  not  been 
on  duty  sixteen  consecutive  hours,  but  have  been  on  duty  sixteen 
hours  in  the  aggregate  out  of  a  twenty- four  hour  period.  Such 
twenty-four  hour  period  begins  at  the  time  the  employee  first 
goes  on  duty  after  having  had  at  least  eight  consecutive  hours  off 
duty.  The  term  "on  duty"  includes  all  the  time  during  which 
the  employee  is  performing  service,  or  is  held  responsible  for  per- 
formance of  service.  An  employee  goes  "on  duty"  at  the  time 
he  begins  to  perform  service,  or  at  which  he  is  required 
to  be  in  readiness  to  perform  service,  and  goes  "off  duty"  at 
the  time  he  is  relieved  from  service  and  from  responsibility  for 
performance  of  service.     ( Qualified  by  Ruling  74.  ) 

(c)  The  act  does  not  specify  the  classes  of  employees  that  are 
subject  to  its  terins.  All  employees  engaged  in  or  connected  with 
the  movement  of  any  train,  as  described  in  section  1,  are  within 
its  scope.  Train  dispatchers,  conductors,  engineers,  telegraphers, 
firemen,  brakemen,  train  baggagemen,  who,  by  rules  of  carriers, 
are  required  to  perform  any  duty  in  connection  with  the  move- 
ment of  trains,  yardmen,  switch  tenders,  tower  men,  block-signal 
operators,  etc.,  come  within  the  provisions  of  the  statute.  ( Quali- 
fied by  Rulings  108  and  275  ;  see  also  Ruling  88.) 

(d)  The  proviso  in  section  2  covers  every  employee  who,  by 
the  use  of  the  telegraph  or  telephone,  handles  orders  pertaining' 
to  or  affecting  train  movements.  In  order  to  preserve  the  ob- 
vious intent  of  the  law  this  provision  must  be  construed  to  include 
all  employees  who,  by  the  use  of  an  electrical  current,  handle 
train  orders,  or  signals  which  control  movements  of  trains.  (See 
Ruling  88.) 

(e)  The  prime  purpose  of  this  law  is  to  secure  additional 
safety  by  preventing  employees  from  working  longer  hours  than 
those  specified  in  the  act.  Therefore  a  telegraph  or  telephone 
operator  who  is  employed  in  a  night  and  day  ofifice  may  not  be 
required  to  perform  duty  in  any  capacity  or  of  any  kind  beyond 
nine  hours  of  total  service  in  any  twenty-four  hour  period. 

(/)  The  phrase  "towers,  offices,  places,  and  stations"  is  inter- 
preted to  mean  particular  and  definite  locations.  The  purpose 
of  the  law  and  of  the  proviso  for  nine  hours  of  service  may  not  be 
avoided  by  erecting  ofifices,  stations,  depots,  or  buildings  in  close 


Confe;ri-:ncr   Rulings.  885 

proximity  to  each  other  and  operating  from  one  a  part  of  the 
day  while  the  other  is  closed,  and  vice  versa. 

The  statute  is  remedial  in  its  intent  and  must  have  a  broad 
construction  so  that  the  purpose  of  the  Congress  may  not  be 
defeated. 

(g)  The  Commission  interprets  the  phrase  "continuously  op- 
erated night  and  day"  as  applying  to  all  offices,  places,  and  sta- 
tions operated  during  a  portion  of  the  day  and  a  portion  of  the 
night,  a  total  of  more  than  thirteen  hours. 

The  phrase  "operated  only  during  the  daytime"  refers  to  sta- 
tions which  are  operated  not  to  exceed  thirteen  hours  in  a  twenty- 
four  hour  period,  and  is  not  considered  as  meaning  that  the  op- 
erator thereat  may  be  employed  only  during  the  daytime. 

(/?)  The  act  provides  that  operators  employed  at  night  and 
day  stations  or  at  daytime  stations  may,  in  case  of  emergency, 
be  required  to  work  four  additional  hours  on  not  exceeding  three 
days  in  any  week.  Manifestly,  the  emergency  must  be  real  and 
one  against  which  the  carrier  can  not  guard. 

"In  any  week"  is  construed  to  mean  in  any  calendar  week,  be- 
ginning with  Sunday. 

(i)  S^c.  3.  The  instances  in  which  the  act  will  not  apply  in- 
clude only  such  occurrences  as  could  not  be  guarded  against; 
those  which  involved  no  neglect  or  lack  of  precaution  on  the  part 
of  the  carrier,  its  agents,  or  officers ;  and  they  serve  to  waive  the 
application  of  the  law  to  employees  on  trains  only  until  such 
employees,  so  delayed,  reach  a  terminal  or  relay  point.  (See 
Ruling  88.) 

"Casualty,"  like  its  synonyms  "accident"  and  "misfortune," 
may  proceed  or  result  from  negligence  or  other  cause  known  or 
unknown.  (Words  and  Phrases  Judicially  Defined,  vol.  2, 
1003.) 

Act  of  God.  /\ny  accident  due  to  natural  causes  directly  rmd 
exclusively  without  human  intervention,  such  as  could  not  have 
been  prevented  by  any  amount  of  foresight,  and  pains,  and  care 
reasonable  to  have  been  expected.  (Bouvier's  T^aw  Dictionary, 
vol.  1,  79.) 

(J)  It  will  be  noted  that  the  penalties  for  violation  of  this 
act  are  against  the  "common  carriers,  or  any  officer  or  agent 
thereof,  ref|uiring  or  permitting  any  employee  to  go,  be,  or  re- 
main on  chity."  in  \iolalion  of  the  law.  It  is  clear  lliat  the  offi- 
cers anfl  agents  of  carriers  who  are  liable  to  the  ])enalties  pro- 


886  Conference   Rulings. 

vided  in  the  act  are  those  who  have  official  direction  or  control 
of  the  employees ;  and  that  the  penalties  do  not  attach  to  the 
employees  who.  subject  to  such  supervision  or  control,  perform 
the  service  prohibited. 

(k )  Sec.  4.  To  enforce  this  act  the  Interstate  Commerce  Com- 
mission has  all  the  powers  which  have  been  granted  to  it  for  the 
enforcement  of  the  act  to  regulate  commerce,  including  authority 
to  appoint  employees,  to  require  reports,  to  examine  books,  pa- 
pers, and  documents,  to  administer  oaths,  to  issue  subpoenas,  and 
to  interrogate  witnesses. 


October  j,  igio. 

288.  COMPETEX'CY  OF  RAILROAD  EMPLOYEES- 
CONDITION  OF  SIGNAL  DEVICES.— Upon  inquiry:  Held, 
That,  except  in  cases  of  accident,  the  Commission  has  no  author- 
ity under  the  act  to  regulate  commerce  to  look  into  the  compe- 
tency of  railroad  employees  or  the  physical  condition  of  block 
sisfnals,  and  makes  no  general  investigations  of  that  nature. 


October  4,  iQio. 

289.  POSTING  NAVIES  OF  RESIDENT  AGENTS  AT 
BLIND  SIDINGS. — The  act  requires  a  carrier  to  post  the  name 
of  its  resident  agent  in  every  office,  warehouse,  depot,  or  station 
building  at  which  freight  is  received.  But  upon  inquiry:  Held. 
That  this  is  not  necessary  at  blind  sidings  where  there  is  no  sta- 
tion aeent  or  anv  station  buildin"'  at  which  freight  is  received. 


October  lo,  ipio. 

290.  STATEMENT  OF  SEN  OF  CHILDREN  ON  AP^- 
PLICATIONS  FOR  PASSES.— Upon  inquiry  by  a  carrier 
whether  under  Ruling  95  of  this  Bulletin  it  is  necessary  that  ap- 
plications by  one  carrier  on  another  for  exchange  transportation 
should  show  the  sex  of  the  child  or  children  for  whom  free 
transportation  is  requested:  Held,  That  an  application  in  behalf 
of  "John  Smith  and  children''  is  not  a  sufficient  compliance  with 
the  rule ;  it  should  be  made  in  the  name  of  "John  Smith,  one 
son,  and  two  daughters,"'  so  that  the  representation  that  they 
are  the  children  of  the  person  named  may  affirmatively  appear. 


Conference  Rulings.  887 

October  ii,  igio. 

291.  PARAGRAPH  5  OF  SECTION  15  OF  THE 
AMENDED  ACT  DOES  NOT  APPLY  TO  TELEGRAPH 
COMPANIES.— Upon  inquiry:  Held,  That  the  paragraph  of 
section  15  of  the  amended  act  to  regulate  commerce  giving  the 
shipper  the  right  to  route  his  shipments  does  not  apply  to  tele- 
graph companies. 


November  j,  ipio. 

292.  ALLOWANCES  FOR  FLOOR  RACKS  IN  REFRIG- 
ERATOR CARS  ANALOGOUS  TO  GRAIN-DOOR  AL- 
LOWANCES.— Certain  carriers  filed  tariffs  providing  that  when 
refrigerator  cars  without  floor  rac+cs  are  set  for  loading,  and 
shippers  are  required  to  furnish  floor  racks  to  protect  the  freight 
loaded,  allowances  will  be  made  equal  to  the  cost  of  the  racks 
but  not  to  exceed  $2.50  per  car.  The  question  of  the  lawfulness 
of  such  tariffs  being  under  consideration  :  Held,  That  the  prin- 
ciple involved  is  the  same  as  that  relating  to  grain  doors  furnished 
by  shippers.     (See  Rulings  19,  78,  132,  and  360.) 

293.  RATES  OR  FARES  PUBLISHED  SUBSEQUENT 
TO  FEBRUARY  17,  1911,  IN  VIOLATION  OF  SECTION 
4  AS  AMENDED.— Subsequent  to  February  17,  1911,  any  rate, 
fare,  or  charge  maintained  or  imposed  in  violation  of  the  long- 
and-short-haul  provision  of  the  fourth  section  of  the  act  as 
amended,  which  rate,  fare,  or  charge  is  not  covered  by  an  order 
of  the  Commission  granting  relief  from  the  provisions  of  the  sec- 
tion, or  by  pending  application  for  such  relief,  will  be  held  not 
to  be  brought  into  conformity  with  said  section  by  a  change  in 
classification;  cancellation  of  commodity  rate  leaving  class  rate 
or  combination  rate  to  apply;  cancellation  of  a  rate  with  provi- 
sion that  in  lieu  thereof  a  rate  in  some  other  tariff  shall  apply ; 
correction  of  error  in  tarifl';  addition  or  elimination  of  routes 
without  change  in  list  of  participating  carriers  ;  or  by  any  other 
change  which  does  not  leave  the  rate,  fare,  or  charge  free  from 
conflict  with  the  law.     (See  Rulings  299,  304,  318.) 

294.  TRANSPORTATION  FROM  FOREIGN  COUN- 
TRIES NOT  ADJACENT  THROUGH  THE  UNITED 
STATES  TO  AN  ADJACENT  FOREIGN  COUNTRY.— Upon 
inquiry:    Held,  That  the  transportation  of  property  from  foreign 


COXFERKNCE    RULIXGS. 

countries  not  adjacent  through  the  United  States  to  an  adjacent 
foreign  country  is  subject  to  the  act  and  tariffs  covering  such 
movement  must  be  filed.     (Withdrawn  November  11,  1912.) 

295.  RATES  BASED  ON  VALUE  OF  MERCHANDISE. 
— Carriers  may  lawfully  establish  schedules  of  charges  applicable 
to  a  specific  commodity  and  graduated  reasonably  according  to 
value.  When  such  rates  are  published  shippers  are  entitled  to 
the  rate  corresponding  to  the  actual  value  of  the  property  offered 
by  them  for  transportation.  Shippers  are  not  entitled  under  such 
rates  to  understate  the  actual  value  of  shipments  for  the  purpose 
of  obtaining  the  rate  applicable  upon  articles  of  less  value.  The 
valuation  stated  to  carriers  should  correspond  with  the  actual 
value  as  shown  by  invoices,  etc.  Shippers  misstating  the  value 
of  property  for  the  purpose  of  obtaining  the  rate  applicable  to 
property  of  less  value  are  guilty  of  misbilling  and  are  subject  to 
prosecution  under  section  10  of  the  act  to  regulate  commerce. 
(See  Ruling  5S.) 


November  8,  iQio. 

296.  POWER  TO  REQUIRE  ADDUriONAL  PASSEN- 
GER TRAIN  SERVICE.— (a)  Upon  complaint  of  a  resident  at 
a  suburban  station  that  sufficient  trains  are  not  run  to  and  from 
New  York  City  during  the  morning  and  evening  hours  to  ac- 
commodate commuters :  Held,  That  the  Commission  is  without 
authority  to  require  the  running  of  additional  trains. 

( /' )  L'pou  complaint  of  the  discontinuance  of  a  daily  accom- 
modation train  between  Washington  and  a  rural  community  27 
miles  distant.  Held.  That  the  Commission  is  without  power  to 
grant  relief. 

297.  FREE  AND  REDUCED  RATE  TRANSPORTATION 
OF  PERSONS  TRAVELING  AT  THE  EXPENSE  OF 
STATE  OR  TERRITORIAL  GOVERNMENTS.— Ruling  218 
of  this  Bulletin  is  confined  to  movements  at  the  instance  and  ex- 
pense of  the  LTnited  States.  The  Commission  finds  nothing  in 
the  law  authorizing  free  or  reduced  rate  transportation  of  per- 
sons, other  than  indigents,  traveling  at  the  expense  of  a  state  or 
territorial  government.     (See  Ruling  208-^'.) 


Conference   Rulings.  889 

November  14,  ipio. 

298.  THROUGH  FARES  HIGHER  THAN  THE  COM- 
BINATION OF  INTERMEDIATE  FARES.— Upon  inquiry 
whether  the  prohibition  against  charging  a  greater  compensation 
as  a  through  charge  than  the  aggregate  of  the  intermediate 
charges  subject  to  the  provisions  of  the  act  is  to  be  construed  as 
meaning  that  fares  must  be  made  not  higher  than  the  lowest 
possible  combination  of  intermediate  fares,  and  if  not,  upon  what 
basis  they  may  be  constructed :  Held,  That  the  fares  must  be 
constructed  upon  the  basis  of  being  no  higher  than  the  lowest 
combination  of  fares  that  are  published  and  filed  as  available 
for  interstate  travel  or  in  making  up  interstate  fares.  If  a  car- 
rier desires  to  exclude  from  this  consideration  any  of  its  purely 
intrastate  fares  it  must  refrain  from  publishing  and  filing  such 
intrastate  fares  as  available  for  use  in  making  up  interstate 
fares. 


December  i"/,  igio. 

299.  APPLICATION  OF  SECTION  4,  AS  AMENDED 
JUNE  18,  1910,  TO  EXPORT  AND  IMPORT  RATES.— (a) 
Inland  export  and  import  rates  are  subject  to  the  provisions  of 
the  act  and  within  the  jurisdiction  of  the  Commission. 

( b )  The  fourth  section  of  the  amended  act  forbids  carriers 
subject  thereto,  without  authority  from  the  Commission  in  ac- 
cordance with  said  section,  to  charge  more  for  the  transporta- 
tion of  a  like  kind  of  export  or  import  traffic  for  a  shorter  than 
for  a  longer  haul  over  the  same  line  in  the  same  direction  ;  that 
is,  as  we  understand  the  law,  the  validity  of  a  rate  under  this 
section  is  determined  by  comparison  of  an  exi)ort  rate  with  an 
export  rate,  or  an  import  rate  with  an  import  rate. 

{c)  So  far  as  the  fourth  section  is  concerned,  carriers  arc  not 
recjuired  in  the  first  instance  to  establish  export  and  import  rates 
which  shall  be  measured  and  limited  by  domestic  interstate  rates 
between  the  same  points  of  origin  and  destination  in  the  Ignited 
States ;  but  as  export  and  import  rates,  as  well  as  domestic  in- 
terstate rates,  are  subject  to  the  provisions  of  the  act  and  the 
jurisdiction  of  the  Commission,  it  is  clear  that  the  reasonableness 
of  any  of  these  rates  under  the  ])rovisions  of  section  1,  and 
questions  of  discrimination  under  tlie  ihird  section,  luay  all  be  con- 


890  CoNFERKNCR   Rulings. 

sidered  and  the  Commission  may  condemn  any  discrimination  in 
export  and  import  rates,  upon  comparison  with  those  applicable 
on  domestic  interstate  traffic,  to  the  extent  that  the  same  may  be 
found  unjust  or  unreasonable  in  any  particular  case  upon  investi- 
gation and  full  hearing. 

(Section  4  as  amended  is  also  interpreted  in  Rulings  293,  v504, 
318.) 


January  14,  IQII. 

300.  BROKERAGE  CHARGES  BY  EXPRESS  COM- 
PANIES ON  SHIPMENTS  FROM  ABROAD.— A  suit  case 
consigned  from  London  in  care  of  an  express  company  at  New 
York  City  for  further  transportation  inland  by  express  was  ap- 
praised by  the  customs  officials,  with  its  contents,  at  the  sum 
of  $363.  Upon  complaint  of  a  charge  of  $3  exacted  by  the  ex- 
press company  for  its  services  in  clearing  the  shipment  through 
the  custoins  house,  no  scale  of  such  charges  being  filed  with  this 
Commission,  it  was  Held:  That  brokerage  charges  of  this  na- 
ture are  not  within  the  jurisdiction  of  the  Commission,  not  being 
a  part  of  the  transportation  service.     (See  Ruling  7.) 


febniary  /j,  iQii. 

301.  EMPLOYEES  C:>N  PRIVATELY  OWNED  OR 
CHARTERED  CARS.— Upon  inquiry:  Held,  That  porters, 
cooks,  or  waiters  on  privately  owned  or  chartered  cars  moving 
under  tarift'  authority  may  be  carried  as  employees. 

302.  TELEGRAMS  RELATING  TO  SHIPMENTS.— Tel- 
egraphic instructions  or  incjuiries  made  by  shippers  to  or  of  a 
carrier  in  relation  to  their  shipments  may  not  properly  be  paid 
for  Ijy  the  carrier  unless  so  provided  in  its  published  tarift's ; 
a  telegram  sent  by  the  carrier  to  the  shipper  relating  to  his  traffic, 
and  his  reply  thereto,  pertain  to  the  business  of  the  carrier  and 
may  be  sent  at  its  expense.  (Construed  by  Ruling  327 ;  see  Rul- 
ing 363.) 


Febniary  22,  igii. 

303.  REDEMPTION  OF  TICKETS.— Under  appropriate 
provision  in  its  tariffs  a  carrier  may  redeem  the  unused  portion  of 
a  round-trip  ticket  on  the  basis  of  a  lower  round-trip  fare  to  a 


Coxference:   Rulings.  891 

point  directly  intermediate,  provided  the  latter  fare  was  lawfully 
available  for  the  journey  as  actually  commenced  and  concluded; 
or  it  may,  under  a  tariff  provision  to  that  eft'ect,  exchange  a 
round-trip  ticket  to  a  point  directly  intermediate  for  a  round-trip 
ticket  available  at  the  same  time  to  a  more  distant  point,  upon 
collecting  the  difference  in  the  fares  of  the  two  tickets.  (Affirm- 
ing Ruling  265;  see  also  Rulings  76,  115.) 


March  ij,  igii. 

304.  APPLICATION  OF  SECTION  4  AS  AMENDED 
JUNE  18,  1910. —  (a)  The  fourth  section  applies  to  all  rates  and 
fares,  but  in  determining  whether  its  provisions  are  contravened 
rates  and  fares  of  the  same  kind  should  be  compared  with  one 
another ;  that  is,  transshipment  rates  should  be  compared  with 
transshipment  rates ;  proportional  rates  with  proportional  rates ; 
excursion  fares  with  excursion  fares ;  and  commutation  fares 
with  commutation  fares.  It  would  not  be  in  violation  of  the 
fourth  section,  for  instance,  if  a  proportional  rate  to  or  from  a 
given  point  were  lower  than  the  regular  rate  to  or  from  an  inter- 
mediate point,  nor  if  the  commutation  fare  to  or  from  a  more 
distant  point  were  lower  than  the  regular  fare  to  or  from  an 
intermediate  point.     (Rules  309,  310.) 

(b)  A  proportional  rate  is  defined  as  one  which  applies  to 
part  of  a  through  transportation  which  is  entirely  within  the  ju- 
risdiction of  the  act  to  regulate  commerce ;  that  is,  the  balance 
of  the  transportation  to  which  the  proportional  rate  applies  must 
be  under  a  rate  filed  with  this  Commission.  A  rate  to  a  port  for 
shipment  beyond  by  a  water  carrier  not  subject  to  the  ])rovisions 
of  this  act  would  not  be  a  ])ro]Jortional  rate. 

The  foregoing  holding  is  not  intended  to  a])prove  the  lawful- 
ness of  any  existing  transshi])ment  rate. 

(c)  An  excursion  rate  is  one  which  provides  for  a  return  to 
the  initial  point  or  some  corresi)onding  point. 

(d )  Where  from  the  absorption  of  a  switching  charge  it  re- 
sults that  the  total  transportation  charge  from  a  more  distant 
point  to  the  ])oint  where  the  i)roperty  is  delivered  is  less  than  the 
total  transportation  charge  from  or  to  an  intermediate  point  the 
fourth  section  is  violated.  Owing,  however,  to  the  very  general 
practice   of    absorbing   switching   charges    from    competitive   and 


892  Conference;   Rulings. 

not  from  noncompetitive  stations,  and  in  view  of  the  fact  that 
much  benefit  and  Httle  complaint  results,  the  Commission  will, 
by  general  order,  permit  a  continuance  of  this  practice,  reserv- 
ing for  consideration  and  determination  individual  cases  which 
may  require  special  consideration.  (Such  an  order  was  entered 
March  20,  1911.) 

[e)  If  a  carrier  has  been  given  authority  to  maintain  from  or 
to  noncompetitive  intermediate  points  rates  higher  than  those 
from  or  to  more  distant  competitive  points  and  a  new  intermedi- 
ate station  is  opened,  rates  from  or  to  such  intermediate  station 
which  are  the  same  or  in  harmony  with  those  authorized  may  be 
established  by  the  carrier  without  special  authority  from  the 
Commission. 

(/)  If  a  carrier  is  authorized  to  maintain  rates  to  or  from  a 
given  point  which  are  not  in  conformity  with  the  fourth  section, 
it  may  establish  rates  upon  branch  lines  connecting  with  the  main 
line  at  these  points  which  are  higher  than  such  intermediate  rates 
by  arbitraries  or  by  the  branch-line  locals,  without  special  au- 
thority from  the  Commission. 

(Section  4  as  amended  is  also  interpreted  in  Rulings  293,  299, 
318.) 

305.  APPUCATIOX  OF  THE  AMENDED  ACT  TO 
TELEGRAPH  AND  TELEPHONE  COMPANIES.— (o) 
Each  and  every  telegraph  and  telephone  company  which  trans- 
mits messages  over  its  line  or  lines  from  a  point  in  one  State, 
Territory,  or  District  of  the  L'nited  States  to  any  other  State, 
Territory,  or  District  of  the  Lnited  States,  or  to  any  foreign 
country,  is  subject  to  the  provisions  of  the  act. 

(&)  If  a  telegraph  or  telephone  company,  the  line  of  which  is 
wholly  within  a  single  State,  Territory,  or  District  of  the  L'nited 
States,  receives  a  message  within  such  State,  Territory,  or  Dis- 
trict of  the  L^nited  States,  for  transmission  to  a  point  without 
the  State,  Territory,  or  District  of  the  United  States,  which  it 
transmits  over  its  line  to  another  point  in  the  same  State,  Ter- 
ritory, or  District  of  the  United  States  and  there  delivers  it  to 
an  interstate  line  for  transmission  to  destination,  the  first-named 
company  by  virtue  of  its  participation  in  this  transaction,  is  not 
made  subject  to  the  provisions  of  the  act;  unless  there  be  an  ar- 


Conference   Rulings.  893 

rangemeiit  between  that  company  and  its  connection  for  through 
continuous  transmission  of  such  messages,  in  which  latter  case 
all  of  the  participating  companies  in  such  through  continuous 
transmission  are  subject  to  the  provisions  of  the  act. 

(c)  If  two  or  more  lines  are  connected  so  that  a  person  within 
one  State,  Territory,  or  District  of  the  United  States  talks  with  a 
person  at  a  point  without  such  State,  Territory,  or  District  of 
the  United  States,  or  so  that  a  message  is  transmitted  directly 
from  a  point  within  a  State,  Territory,  or  District  of  the  United 
States  to  a  point  without  the  same,  the  transmission  of  messages  in 
this  manner  constitutes  interstate  commerce  and  brings  all  of  the 
participating  lines  within  the  purview  of  the  act. 

(d)  It  follows  that  telegraph  and  telephone  companies  sub- 
ject to  the  act,  as  above  indicated,  must  conform  to  the  provisions 
of  section  1  thereof  requiring  that  all  of  their  rates  and  charges 
for  the  transmission  of  interstate  messages  shall  be  reasonable 
and  just,  and  that  such  companies  may  lawfully  issue  franks  cov- 
ering free  interstate  service  or  may  grant  free  interstate  service 
to  the  same  extent,  and  subject  to  the  same  limitations  as  other 
common  carriers  under  the  provisions  of  said  section.  (See  Rul- 
ings 95-a,  par.  2,  161,  219,  and  364.) 

(e)  Such  telegraph  and  telephone  companies  subject  to  the  act 
are  also  governed  by  the  provisions  of  section  3  forbidding  any 
undue  or  unreasonable  preference  or  advantage  by  rebates  or 
otherwise,  or  any  undue  or  unreasonable  prejudice  or  disad- 
vantage in  any  respect  whatsoever,  and  are  subject  to  the  lawful 
orders  of  the  Commission  made  pursuant  to  the  provisions  of 
section  15  of  the  act,  and  also  of  section  20  thereof  respecting 
the  keeping  of  accounts  and  memoranda  and  the  making  of  re- 
ports to  the  Commission. 


April  3,  1911. 

306.  STATL'TK  OF  LIMITATIONS  .\0.\()I'1{RAT1\K 
AS  BETWEEN  CARRIERS.— Before  the  expiration  of  two 
years  a  delivering  line  discovered  and  at  once  refunded  an  over- 
charge;  ujjon  demand  made  by  it  after  the  two  years  had  ex- 
pired a  connecting  line  declined  to  repay  its  share,  on  tlie  ground 
that  the  statute  had  run:  Held,  that  in  such  cases  the  statute 
does  not  run  as  between  carriers.     (S^'^'  I'^uliiig  --0-y- ) 


894  Coxfi:ki;.\ci-;   Rulings. 

307.  CLAIMS  BARRED  WY  THE  STATUTE  OF  LIMI- 
TATIONS.— Overlooking  a  higher  through  rate,  charges  were 
collected  on  the  sum  of  the  intermediate  rates.  After  two  years 
had  expired  the  through  rate  was  reduced  to  that  basis  and  still 
later  the  balance  of  the  through  rate  legally  in  etfect  on  the  date 
of  the  shipment  was  collected.  L'pon  presentation  of  the  claim 
some  months  later :  Held,  That  it  was  barred  by  the  statute,  and 
that  the  case  is  controlled  by  Blinn  Lumber  Co.  v.  S.  P.  Co.,  18 
I.  C.  C.  Rep.,  430.     (  See  Rulings  10  and  220-/.) 

308.  USE  OF  FREE  TRANSPORTATION  BY  RAIL- 
ROAD EMPLOYEE  WHILE  CONNECTED  WITH  MUNIC- 
IPAL OFFICE. — L'pon  inquiry :  Held,  That  a  railroad  em- 
ployee on  leave  of  absence  for  the  purpose  of  filling  a  term  in  a 
public  office,  or  to  engage  in  other  business,  is  not  entitled  during 
such  period  to  frefe  passes  either  for  himself  or  his  family.  (  See 
Ruling  208-(/.) 

309.  PASSENGER  FARES  UNDER  THE  FOURTH 
SECTION^. — Held,  That  carriers  may  not  disregard  the  fourth 
section  in  order  that  passenger  fares  may  be  stated  in  multiples 
of  five.     (See  Ruling  304-o.) 

310.  PASSENGER  FARES  UNDER  THE  FOURTH 
SECTION. — Held,  That  in  determining  whether  the  provisions 
of  the  fourth  section  are  contravened,  mileage,  commutation, 
party  rate,  and  half  fares  for  children  should  be  compared  only 
with  fares  of  the  same  character.     ( See  Ruling  304-fl. ) 


.-Ipril  /,  iQii. 

311.  FREE  TRANSPORTATION  OF  PROPERTY  FOR 
COUNTY  AUTHORITIES.— Upon  inquiry:  Held,  That  un- 
der section  22  interstate  hues  may  carry  free  or  at  reduced  rates 
for  county  authorities.  (See  Rulings  ?)^,  65,  208-^,  244,  and 
297.) 

312.  TERMINAL  COMPANIES  SUBJECT  TO  ACT.— 
L'pon  inquiry:  Held,  That  terminal  companies  must  file  statis- 
tical reports  as  required  by  the  Commission. 


CoxXFERENCE   Rulings.  895 

April  10,  ipii. 

313.  DEMURRAGE  RULES.— The  following  interpreta- 
tions and  explanations  by  the  American  Railway  Association  of 
certain  of  the  National  Demurrage  Rules  recommended  by  the 
Commission  on  December  18,  1909,  for  use  throughout  the  coun- 
try are  tentatively  accepted  subject  to  the  right  and  duty  of  the 
Commission,  upon  complaint  made  or  on  its  own  initiative,  to 
inquire  into  the  legality  and  reasonableness  of  any  such  rule  so 

interpreted  and  applied. 

• 

Rule  1. — Cars  subject  to  rules. 

Cars  loaded  with  company  material  for  use  of  and  consigned 
to  the  railroad  in  whose  possession  the  cars  are  held  are  not  sub- 
ject to  demurrage. 

Empty  cars  placed  for  loading  with  company  material  are  sub- 
ject to  demurrage,  unless  the  loading  is  done  by  the  railroad  com- 
pany for  which  the  material  is  intended  and  on  its  track. 

(a)  Empty  cars  placed  for  loading  live  stock  by  shippers  are 
not  exempt  and  should  be  reported. 

Live  poultry  is  not  considered  as  live  stock,  and  cars  so  loaded 
are  subject  to  demurrage. 

(c)  Empty  private  cars  stored  on  tracks,  switched  by  carriers, 
taken  for  loading  without  order  or  requisition  from  shipper  and 
without  formal  assignment  by  carrier's  agent,  shall  be  recorded 
as  placed  for  loading  when  actual  loading  is  begun. 

Note. — Private  cars  l)elonging  to  an  industry  which  does  its  own 
switching,  placed  upon  an  interchange  track  for  forwarding,  and  re- 
fused by  the  carrier's  ins,pector,  shall  be  released  from  demurrage 
if  withdrawn  by  the  industry  from  the  interchange  track  within 
twenty-four   (24)    hours   after   rejection. 

Private  cars  are  not  in  railroad  service — 

(a)  When  loaded  and  unloaded  on  the  tracks  of  the  owner  and 
not  moved  over  the  tracks  of  a  carrier ; 

(b)  When  ])laced  by  the  carrier  for  loading  on  the  tracks  of 
the  owner  and  refused  by  the  insjjector. 

Rule  2. — Freic  time  .xllovvko. 

(a)  When  the  same  car  is  both  unloaded  and  reloaded,  each 
transaction  will  be  treated  as  independent  of  the  other. 

(b)  1.  Applies  to  cars  held  on  carrier  line  for  disposition.  .\ 
change  of  consignee  after  arri\al  of  car  at  destination  is  not  a 
reconsignment  under  these  rules,  unless  a  switching  movement 
covered  by  a  tariff  is  involved.  It  also  includes  cars  held  in  tran- 
sit for  reconsignment.     (See  also  (/')  3.) 


896  CoxFKRKNCK   Rulings. 

It  also  applies  to  cars  held  on  the  carrier  line  within  a  switch- 
ing district  consigned  to  a  point  on  a  switching  line  within  such 
district,  which  can  not  be  received  on  account  of  disaibility  of  the 
consignee.  The  carrier  line  must  in  all  cases  give  notice  in  writ- 
ing to  the  consignee  of  all  cars  so  held.  Time  will  be  computed 
in  accordance  with  Rule  3  (7^),  following. 

Rule  3. — Computing  time. 
Note. — The  exemption  of  holidays  does  not  include  half  holidays. 
(//)  When  orders  for  cars  held  for  disposition  or  reconsign- 
ment  are  ^mailed,  such  orders  will  release  cars  at  7  a.  m.  of  the 
date  orders  are  received  at  the  station  where  the  freight  is  held, 
provided  the  orders  are  mailed  prior  to  the  date  received,  but  or- 
ders mailed  and  received  on  the  same  date  release  cars  the  fol- 
lowing 7  a.  m. 

Rule  4. — Notification. 

When  cars  are  for  delivery  to  public  team  tracks,  and  place- 
ment is  delayed  for  more  than  twenty-four  (24)  hours  after  no- 
tice of  arrival  is  given,  a  notice  of  placement  must  also  be  given 
to  the  consignee,  and  the  free  time  for  unloading  computed  ac- 
cording to  the  notice  of  placement. 

Rl'Le  7. — Demurrage  charge:. 

Charges  accruing  under  these  rules  must  be  collected  in  the 
same  manner  and  with  the  same  regularity  and  promptness  as 
other  transportation  charges. 

Rule  8. — Claims. 

The  exemptions  on  account  of  high  water  or  snowdrifts  ap- 
ply only  when  the  point  at  which  car  is  placed  for  loading  or 
unloading  is  inaccessible  to  the  general  public  by  reason  of  these 
conditions. 


May  I.  igii. 

'314.  COLLECTION  OF  UNDERCHARGES.— The  law 
requires  the  carrier  to  collect  and  the  party  legally  responsible  to 
pay  the  lawfully  established  rates  without  deviation  therefrom. 
It  follows  that  it  is  the  duty  of  carriers  to  exhaust  their  legal 
remedies  in  order  to  collect  undercharges  from  the  party  or  par- 
ties legally  responsible  therefor.  It  is  not  for  the  Commission, 
however,  to  determine  in  any  case  which  party,  consignor  or 
consignee,  is  legally  liable  for  the  undercharge,  that  being  a 
question  determinable  only  by  a  court  having  jurisdiction  and 
upon  the  facts  of  each  case.  (Superseding  Rulings  3  and  187. 
See  also  Rulings  16  and  156.) 


Conference;  Rulings.  897 

315.  USE  OF  INTRASTATE  MILEAGE  BOOKS  IS- 
SUED IX  EXCHANGE  FOR  ADVERTISIXG.— A  State 
statute  permits  the  exchange  of  intrastate  mileage  books  for  ad- 
vertising. Upon  inquiry :  Held,  That  such  books  may  not  be 
used  upon  any  part  of  an  interstate  journey. 

316.  CONFEREXCE  RULING  284  SUPERSEDED.— 
L'pon  inquiry  as  to  the  application  of  Rulings  190  and  214  to 
routes  made  up  partly  of  a  car  ferry:  Held,  That  routes  involv- 
ing the  transshipment  of  freight  from  a  rail  line  to  a  water  line 
or  from  a  water  line  to  a  rail  line  are  "rail-and-water  routes," 
and  that  routes  composed  of  rail  lines  connected  by  car  ferries 
over  which  the  freight  is  ferried  in  the  car  constitute  "car-ferry 
routes"  and  are  understood  to  be  included  in  the  general  term 
"all-rail." 

Held  further,  That  where  a  shipper  does  not  specify  a  partic- 
ular route,  or  a  rail-and-water  route,  the  carrier's  agent  must- 
consider  car-ferry  routes  as  available  in  performing  the  duty  of 
routing  a  shipment  over  the  cheapest  route.  (See  Ruling  190, 
interpreting  Ruling  214.) 


May  2,  ipii. 

317.  ERRORS  IX  TRAXSMISSIOX  OF  TELEGRAPHIC 
MESSAGES. — Upon  inquiry:  Held,  That  the  Commission  has 
no  jurisdiction  over  claims  for  damages  due  to  alleged  errors  in 
the  transmission  of  telegraphic  messages. 


May  8,  iqii. 

318.  APPLICATIOX  OF  FOURTH  SECTIOX  WHEN 
ONE  OR  MORE  POINTS  ARE  IN  A  FOREIGN  COUN- 
TRY.— The  fourth  section  does  not  apply  when  the  more  dis- 
tant point  and  the  intermediate  point  are  in  a  foreign  country ; 
nor  when  the  point  of  origin  and  ])oint  of  destination  are  both  in 
the  United  States  and  tlie  intermediate  point  is  in  a  foreign  coun- 
try.    (See  Rulings  293.  299,  and  304.) 


June  2,  ipii. 

319.    FREE   TRANSPORT/\TION    OF    WITNESSES.— 
Upon  intjuiry :    Held,  That  a  carrier  may  not  lawfully  issue  free 


—29 


898  Conference   Rulings. 

interstate  transportation  to  one  not  otherwise  entitled  to  it  in 
order  to  enable  him  as  a  witness  to  attend  a  proceeding  in  court 
unless  the  carrier  is  a  party  thereto  or  has  a  direct  legal  interest 
in  the  result. 

320.  FREE  TRANSPORTATION  OF  INSTRUCTOR  IN 
USE  OF  BOILER  COMPOUND.— In  arranging  for  the  pur- 
chase of  a  chemical  compound  to  be  used  in  locomotive  boilers 
it  was  understood  that  the  chemical  company  would  give  to  the 
engineers  and  firemen  the  necessary  instructions  for  using  the 
compound  and  that  the  carrier  would  furnish  passes  to  an  in- 
structor for  that  purpose :  Held,  That  the  instructor  is  not  en- 
titled to  use  free  transportation  under  Conference  Ruling  No. 
208-b.    Overruled  by  Ruling  336.     (See  Ruling  169.) 

321.  SHIPPER  MAY  DIRECT  TERMINAL  ROUTING.— 
In  view  of  the  amendment  to  section  15  of  the  act,  paragraph  b 
of  Conference  Ruling  No.  214  is  now  amended  so  as  to  read  as 
follows : 

(b)  In  order  to  secure  desired  delivery  to  industries,  plants, 
or  warehouses  and  avoid  unnecessary  terminal  or  switching 
charges,  the  shipper  may  direct  as  to  terminal  routing  or  deliv- 
ery of  shipments  which  are  to  go  beyond  the  lines  of  the  initial 
carriers ;  and  his  instructions  as  to  such  terminal  delivery  must 
be  observed  in  routing  and  billing  such  shipments.  When  ship- 
ments are  accepted  without  specific  routing  instructions  from 
shipper,  where  all-rail  rates  and  rail-and-water  rates  are  avail- 
able the  carrier's  agent  must  have  the  shipper  designate  which 
of  the  two  he  wishes  to  use.  Carriers  will  be  held  responsible 
for  routing  shown  in  bill  of  lading.     (  See  Rulings  190  and  284.) 

322.  SUSPENSION  OF  TARIFF  SCHEDULES.— The 
authority  conferred  on  the  Commission  by  the  amendatory  act 
of  June  18,  1910,  to  suspend  schedules  stating  new  individual  or 
joint  rates,  fares,  or  charges,  or  any  new  individual  or  joint 
classification,  or  any  new  individual  or  joint  regulation  or  prac- 
tice affecting  any  rate,  fare,  or  charge,  was  not  intended  to  with- 
draw from  carriers  the  right  to  initiate  their  rates,  fares,  charges, 
and  regulations  and  does  not  mean  that  in  every  case  of  ad- 
vanced rates  or  charges  the  schedules  should  be  suspended.  The 
statute  vests  a  discretion  in  the  Commission  in  that  regard  and 


Conference   Rulings.  899 

contemplates  that  it  will  be  exercised  in  a  judicial  spirit.  Ex- 
cept in  cases  where  it  acts  on  its  own  initiative  the  Commission 
will  not  ordinarily  suspend  the  operation  of  a  schedule  unless 
the  changes  complained  of  are  called  to  its  attention  at  least  10 
days  before  the  effective  date  of  the  schedule,  thus  giving  the 
Commission  time  in  which  to  act  intelligently  and  to  avoid  dis- 
criminations that  might  result  from  the  improper  suspension  of 
a  schedule. 

Requests  for  such  action  by  the  Commission  should  be  made 
in  the  form  of  a  complaint  indicating  the  schedule  by  its  I.  C.  C. 
number  and  specifically  referring  to  the  parts  thereof  as  to  which 
suspension  is  asked,  together  with  reasonably  detailed  explana- 
tions as  to  the  probable  effect  of  the  proposed  new^  rates, 
fares,  etc. 


June  8,  ipii. 

323.  OFFSETTING  OF  UNDER  OR  0\'ER  CHARGES. 
— It  appearing  that  some  confusion  has  been  caused  by  the  Com- 
mission's Conference  Rulings  Nos.  48,  133,  and  its  ruling  of  Feb- 
ruary 14,  1911,  the  following  is  issued  in  lieu  of  the  three  rulings 
above  mentioned  : 

The  Commission  has  no  authority  to  control  the  disposition  of 
an  overcharge.  The  carrier  must  charge  no  other  than  its  lawful 
rate  and  the  failure  to  collect  the  full  rate  as  to  any  shi])ment  is 
a  violation  of  the  law,  as  is  the  collection  of  more  than  the  full 
rate.  The  Commission  declines  to  declare  that  an  overcharge 
may  be  offset  a^  against  an  uncollected  undercharge ;  such  offset 
is  not  within  the  power  of  the  Commission  to  authorize  or  con- 
demn. 


June    IQ,  igii. 

324.  DIVISIONS  OK  COMPANY  COAL.— I'pon  inquiry: 
Held,  That  it  is  unlawful  for  carriers  to  make  special  and  dis- 
criminatory divisions  of  joint  rates  upon  locomotive  fuel  as  be- 
tween an  originating  or  part'cipating  carrier  and  a  jnirchasing 
carrier.  In  the  division  of  joint  rates  a  railroad  must  be  treated 
])recisely  as  any  other  shipper  is  treated,  and  the  Coniniission  will 
regard  any  special  division  as  a  device  to  defeat  the  published 
rate.     All  divisions  uj^on  fuel  coal  must  be  made  in  good  faith 


900  Conference  Rulings. 

without  respect  to  the  fact  that  one  of  the  carriers  is  the  pur- 
chaser of  such  coal. 


June  20,  igii. 

325.  LEASE  OF  LAND  BY  SHIPPER  FROM  A  CAR- 
RIER AT  NOMINAL  RENTAL  UNLAWFUL.— Under  a 
lease  in  which  a  nominal  rental  is  reserved  a  private  person  has 
erected  a  grain  elevator  upon  land  belonging  to  an  interstate  car- 
rier: Held,  That  the  arrangement  constitutes  an  undue  prefer- 
ence. 


October  g,  iqii. 

326.  BAGGAGE  CHECKED  BY  INITIAL  LINE  WITH 
ROUTING  INADEQUATELY  SPECIFIED.— Upon  inquiry 
as  to  the  leg'al  propriety  of  a  proposed  agreement  by  an  associa- 
tion of  general  baggage  agents  pro\iding,  in  substance,  that  an 
intermediate  line  shall  forward  to  checked  destination  by  the  most 
direct  route  any  baggage  received  by  it  not  fully  routed ;  that  the 
initial  line  shall  report  to  the  lines  actually  moving  the  baggage 
the  amount  of  any  excess  baggage  charges  collected  by  it ;  and 
that  in  case  there  is  more  than  one  station  at  destination  the 
initial  as  well  as  the  terminal  line  shall  be  advised  of  the  station 
at  which  the  baggage  may  be  found,  it  was  Held.  That,  subject  to 
such  modified  conclusions  as  may'  be  required  in  the  light  of  fur- 
ther information,  the  Commission  sees  no  present  objection  to 
such  rules  if  properly  published  in  the  tariffs. 


October  lo,  igii. 

327.  TELEGRAMS  RELATING  TO  SHIPMENTS— RUL- 
ING 302  CONSTRUED.— Telegrams  from  a  shipper  relating  to 
his  traffic  must  be  paid  for  by  him,  but  a  carrier  may  lawfully 
answer  such  a  message  at  its  expense.  (See  Rulings  302,  351,  and 
363.) 


November  6,  iqii. 

328.  SAFETY  APPLIANCES— CARS  OF  SPECIAL  CON- 
STRUCTION.— Locomotives  while  equipped  with  snowplows 
or  flangers  are  to  be  regarded  as  cars  of  special  construction 
within  the  meaning  of  the  order  of  March  13,  1011. 


Conference  Rulings.  901 

329.  SAFETY  APPLIAXXES— ORDER  OF  AIARCH  13, 
1911,  CONSTRUED.— The  order  entitled  "United  States  Safety 
Appliance  Standards,"  adopted  on  March  13,  1911,  is  interpreted 
with  respect  to  the  details  mentioned  as  follows : 

1.  That  gondola  and  ballast  cars  with  swinging  side  doors  at 
ladder  locations  may  be  considered  as  cars  of  special  construc- 
tion. 

Ladders  and  handholds  need  not  be  applied  to  swinging  side 
doors. 

A  side  vertical  handhold  shall  be  placed  on  corner  post  of  such 
cars,  as  nearly  as  possible  over  sill  step. 

2.  That  high-side  gondola  and  iballast  cars  with  end  platforms 
18  inches  or  more  in  length  may  be  considered  as  cars  of  special 
construction. 

Ladders  shall  be  placed  on  such  cars  as  prescribed  for  high-side 
gondola  and  hopper  ca'-s,  with  sill  step  under  ladder,  or  as  near 
under  ladder  as  car  construction  will  permit.  Ends  and  side  of 
cars  to  be  equipped  with  handholds  in  the  same  manner  as  flat 
cars. 

3.  Ladders — spacing  of  ladder  treads.  That  the  spacing  of  top 
ladder  treads  shall  be  taken  from  eave  of  roof  at  side  of  car. 
whether  latitudinal  running  board  is  used  or  not.  ( Shown  on 
plates  illustrating  United  States  safety  appliance  standards,  is- 
sued by  the  Commission  July  1,  1911.) 

4.  Box  and  other  house  cars— automobile  cars  with  swinging 
end  doors — end  ladders  : 

That  these  cars  may  come  under  the  head  of  cars  of  special 
construction,  as  per  clause  on  page  Z7  of  the  order,  and  the  end 
ladders  placed  as  nearly  as  possible  to  designated  location. 


November  14,  igii. 

330.  FREE  CARRL\GE  OF  RAILWAY  Y.  M.  C.  A.  LI- 
BRARY BOOKS. — It  is  not  unlawful  for  an  interstate  railroad 
to  carry  without  charge,  for  use  by  railway  employees,  books 
belonging  to  the  libraries  of  Railway  Young  Men's  Christian  As- 
sociations. 

331.  TRANSFER  OF  SHIPMENT  IN  TRANSIT  TO  AN- 
OTHER CAR. — A  shipment  started  to  move  under  a  joint 
through  rate  and  an  established  minimum  for  the  car  of  the  size 
in  which  it  was  loaded,  but  for  the  convenience  of  the  carrier,  was 
subsequently  transferred  into  a  smaller  car  taking  a  lower  mini- 
mum under  the  same  through  rate.     Charges  were  collected  on 


902  CoNFERENCK  Rulings. 

the  actual  weight,  which  was  in  excess  of  the  lower  and  less  than 
the  higher  minimum  weight:  Held,  That  where  a  joint  through 
rate  is  in  effect  the  through  charges  are  not  affected  by  such  a 
transfer  of  the  shipment  in  transit  from  one  car  to  another 
whether  larger  or  smaller ;  and  that  the  through  charges  here 
should  have  been  collected  at  the  joint  through  rate  and  on  the 
basis  of  the  minimum  weight  applicable  on  the  car  ordered  or  ac- 
cepted by  the  consignor  for  the  movement.  (  See  Rulings  273 
274,  339,  and  357.) 


December  ii,  ipii. 

332.  CARRIERS  FAILING  TO  OBEY  ROUTING  IN- 
STRUCTIONS LIABLE  TO  PROSECUTION.— It  is  the  view 

of  the  Commission  that  interstate  carriers  failing  or  refusing  to 
observe  specific  routing  instructions  by  the  shipper  are  liable  to 
prosecution  under  section  10,  the  right  to  determine  the  through 
line  or  route  over  which  his  freight  shall  be  transported  having 
been  expressly  reserved  to  the  shipper  under  section  15  of  the 
act  as  amended  on  June  18,  1910. 

333.  COAIPANY  MATERIAL.— Alaterial  for  use  in  the  re- 
pair of  one  of  its  cars  was  shipped  by  a  carrier  to  the  shop  of  a 
connecting  line.  L'pou  incjuiry  whether  the  material  could  move 
free  of  charge  over  both  roads  it  \vas  Held,  That  in  cases  of  this 
kind  company  material  may  move  without  charge  only  over  the 
line  at  whose  expense  the  repair  is  made.     (  See  Ruling  373. ) 


January  p,  ipi2. 

334.  RATES  ON  GASOLINE  MOTOR  CARS  MOVING 
UNDER  THEIR  OWN  POWER.— The  movement  of  a  gasoline 
motor  car,  from  the  manufacturer  to  the  purchaser,  over  the  rails 
of  a  common  carrier  is  transportation  that  is  subject  to  the  act, 
when  between  interstate  points,  notwithstanding  the  fact  that  it 
moves  under  its  own  power  and  is  operated  by  employees  of  the 
manufacturer.  Such  transportation  is  lawful  only  when  a  rate 
for  it  has  been  duly  published.  Except  on  the  commodities  spe- 
cifically enumerated  in  section  1  of  the  act,  rates  can  not  lawfully 
include  the  passage  of  attendants,  and  as  gasoline  motor  cars  are 
not  so  enumerated  the  attendants  must  pay  fares  on  the  basis  of 


Conference;  Rulings.  903 

the  regularly  published  passenger  fare  then  in  effect.  In  adjust- 
ing its  rates  the  carrier  should  take  into  consideration  the  con- 
ditions surrounding  the  movement  of  traffic  of  this  kind. 

335.  FREE  TRANSPORTATION  OF  HOUSEHOLD 
GOODS. — ^A  bureau  of  the  American  Railway  Association, 
known  as  the  Bureau  for  the  Safe  Transportation  of  Explosives, 
ordered  one  of  its  inspectors  to  permanent  duty  at  another  sta- 
tion. Held,  That  the  carriers  in  the  route  between  the  two  points 
can  not  lawfully  transport  his  household  goods  free  of  charge, 
even  though  they  are  members  of  that  association. 

336.  FREE  TRANSPORTATION  OF  INSTRUCTOR  IN 
THE  USE  OF  BOILER  COMPOUNDS.— Annual  passes  may 
not  lawfully  be  issued  to  or  used  by  employees  of  companies 
manufacturing  boiler  compounds ;  nor  may  a  carrier  transport 
such  persons  free  of  charge  when  going  to  or  from  instruction 
work  on  the  line  of  a  connection.  A  carrier  using  the  compound 
in  its  locomotive  boilers  may  give  free  transportation  to  an  ex- 
pert of  the  manufacturer  whom  it  desires  to  send  over  its  own 
line  to  instruct  its  employees  in  the  use  of  the  compound,  but 
only  for  that  purpose  and  to  the  extent  necessary  in  the  perform- 
ance of  that  duty,  provided  the  agent  does  not  sell  or  solicit  or- 
ders.    (Overruling  Conference  Ruling  ^20.     See  Ruling  346.) 


January  ij,  ipi2. 

337.  AGENTS  FOR  CARRIERS  MAY  NOT  ACT  AS 
AGENTS  FOR  SHIPPERS.— At  certain  docks  the  stevedores, 
who  are  also  the  loading  contractors  for  a  connecting  rail  line, 
unload  the  vessel  and  load  its  cargo  into  the  cars,  handling  a 
loading  slip  to  the  rail  line,  upon  which  the  latter  issues  bills  of 
lading.  For  the  purpose  of  defeating  the  through  rate,  or  in  such 
a  manner  as  to  have  that  result,  they  also  act  as  agents  for  con- 
signees, and  forward  to  inland  rail  points  goods  received  by 
water  at  the  docks  and  originally  intended  for  such  destinations. 

Afffrming  the  principle  of  Conference  Rnling  q8,  it  is  Held, 
That  neither  a  railroad  nor  its  agents  or  employees  may  lawfully 
act  as  forwarding  agents  for  shippers.     (See  Ruling  365.) 


904  Conference  Rulings. 

February  5,  igi2. 

338.  "joint  rate  REDUCED  TO  THE  AGGREGATE 
OF  THE  INTERMEDIATES,  MINIMUM  WEIGHT  BEING 
INCREASED. — A  joint  rate  exceeding  the  aggregate  of  the  in- 
termediate rates  was  later  reduced  to  equal  their  sum,  the  mini- 
mum weight,  however,  being  increased.  Held,  That  in  such  cases 
reparation,  when  awarded  informally  by  the  Commission,  will  be 
on  the  basis  of  the  newly  established  joint  rate  and  minimum 
weight,  subject  of  course  to  the  actual  weight  when  higher  than 
the  new  minimum.     (Rescinding  Ruling  282.) 

339.  TWO  SMALL  CARS  FURNISHED  IN  LIEU  OF  A 
LARGER  CAR  ORDERED  BY  THE  SHIPPER.— Upon  in- 
formal complaints  and  numerous  inquiries  it  is  Held,  That  the  act 
of  a  carrier  in  furnishing  two  small  cars  in  lieu  of  the  larger  car 
ordered  by  a  shipper  under  appropriate  tariff  authority  is  bind- 
ing, at  the  rate  and  minimum  applicable  to  the  car  ordered,  upon 
all  the  carriers  that  are  parties  to  the  joint  rate  under  which  the 
shipment  moves  from  the  point  of  origin  ;  the  shipper  is  entitled 
to  all  privileges  in  transit,  to  reconsignment,  and  to  switching  at 
the  same  charges  as  would  be  applicable  under  the  joint  tariff 
had  the  shipment  been  loaded  into  one  car  of  the  capacity  or- 
dered ;  and  demurrage  will  likewise  accrue  on  that  basis.  If  the 
shipment  moves  beyond  the  point  to  which  the  joint  rate  applies, 
the  connecting  line  or  lines  are  entitled  to  and  should  collect  their 
transit,  reconsigning,  switching,  and  demurrage  charges  as  pro- 
vided in  their  own  tariffs. 

In  all  cases  the  initial  carrier  will  be  liable  for  such  additional 
charges  as  may  be  imposed  on  the  shipper  by  reason  of  its  failure 
to  furnish  a  car  of  the  capacity  ordered.  Carriers  that  are  par- 
ties to  the  joint  rate  under  which  the  shipment  commenced  to 
move  may  share  in  such  additional  expense  so  incurred  by  the 
initial  carrier. 

Rule  66  of  Tariff  Circular  18-A;  General  Chemical  Co.  v.  A'. 
&  W.  Ry.,  15  I.  C.  C.  Rep.,  349:  Conference  Ruling  230:  Mil- 
Zimikee  Falls  Chair  Co.  v.  C.  M.  &  St.  P.,  16  I.  C.  C.  Rep.,  217; 
Conference  Ruling  59;  Noble  v.  B.  &  0.  R.  R.,  22  I.  C.  C.  Rep.. 
432 ;  and  Conference  Ruling  2J4,  reaffirmed,  with  the  understand- 
ing, however,  that  the  duty  of  transferring  the  shipment  rests 
upon  the  carriers  and  not  necessarily  upon  the  connecting  carrier. 
(See  Ruling  Zh7.) 


Conference  Rulings.  905 

340.  RESTAURANT  EMPLOYEES  AT  A  UNION  STA- 
TION NOT  ENTITLED  TO  FREE  TRANSPORTATION.— 
A  restaurant  is  conducted  in  a  union  station  primarily  for  the 
benefit  of  the  traveling  public  by  a  terminal  company  claiming 
to  be  a  common  carrier  within  the  meaning  of  the  act.  L'pon  in- 
quiry, Held,  That  its  employees  in  the  restaurant  are  not  entitled 
to  free  transportation. 

341.  SWITCHING  ROADS— CONCURRENCES.— Two 
lines  having  no  direct  connection  effect  an  interchange  of  traffic 
through  a  terminal  railroad  under  an  arbitrary  switching  charge 
of  $3  a  car,  which  they  absorb  out  of  the  joint  rate.  Upon  in- 
quiry, it  is  Held,  That  it  is  not  necessary  that  the  switching  road 
be  shown  as  concurring  in  the  joint  through  rate  if  its  tariff  of 
switching  charges  is  on  file  and  the  tarifif  naming  the  joint  through 
rate  provides  that  such  charges  will  be  so  absorbed. 

February  12,  igi2. 

342.  HOURS  OF  SERVICE  LAW..— A  trainman  required 
by  the  rules  of  the  carrier,  in  conjunction  with  his  duties  as  train- 
man, to  send,  receive,  or  deliver  orders  afifecting  the  movement 
of  trains  comes  within  the  proviso  of  section  2  of  the  hours  of 
service  act,  and  therefore  a  carrier  may  not  require  a  trainman, 
who  has  been  on  duty  longer  than  the  limit  of  time  fixed  for  a  tele- 
graph or  telephone  operator,  to  send,  receive,  or  deliver  orders 
afifecting  the  movement  of  trains,  as  a  part  of  the  duties  regu- 
larly assigned  to  him. 

But  upon  inquiry  whether  the  practice  of  recfuiring  conductors 
of  trains  delayed  at  stations  where  there  is  no  regularly  assigned 
telegraph  or  telephone  operator  on  duty,  and  conductors  of  trains 
about  to  be  overtaken  by  superior  trains,  to  telephone  or  telegraph 
the  train  dispatcher  for  instructions  is  in  accord  with  the  act  and 
with  the  Commission's  order  of  interpretation  of  June  25,  1908, 
Held,  That  a  trainman  who  has  been  on  duty  for  more  than  9 
hours  or  for  more  than  13  hours  is  not  prohibited  from  occa- 
sionally using  the  telegraph  or  telephone  to  meet  an  emergency. 


March  4,  igi2. 

343.   ICED  REFRIGERATOR  CAR  NOT  USED.— A  re- 
frigerator car  set  for  loading,  fully  iced,  was  not  used  because 


906  Conference  Rulings. 

of  weather  conditions,  and  the  shipper  refused  to  pay  the  ice 
company's  bill :  Held,  That  while  an  action  may  doubtless  lie 
at  common  law,  it  is  not  clear,  in  the  absence  of  a  tariiT  provi- 
sion to  cover  such  cases  that  the  ice  charges  are  collectible  under 
the  a.ct. 

344.  RATES-  LAWFULLY  CANCELED.— Upon  inquiry: 
Held,  That  a  rate  once  lawfully  canceled  may  not  be  reinstated 
as  a  reissued  item. 

345.  FREE  TRANSPORTATION.— The  free-pass  provision 
of  section  1  is  construed  as  implying  that  free  transportation  may 
be  accorded  by  carriers  to  Canadian  customs  and  immigration  in- 
spectors on  duty. 


March  ii,  i§)i2. 

346.  FREE  TRANSPORTATION  OF  INSTRUCTORS.— 
In  the  interest  of  safety  and  economy  many  carriers  have  adopted 
certain  appliances  and  methods  in  the  use  of  which  by  their  em- 
ployees instruction  and  supervision  are  essential  to  proper  re- 
sults and  can  only  be  given  by  experts.  The  contracts  under 
which  carriers  undertake  to  use  such  appliances  or  materials  not 
infrequently  contain  provisions  requiring  the  vendor  to  furnish 
experts  for  these  purposes  and  the  carrier  to  transport  them  over 
its  line  free  of  charge. 

The  successful  use  of  such  appliances  or  materials  makes  for 
the  public  interest,  and  upon  full  consideration  of  numerous  in- 
quiries in  the  light  of  more  complete  information,  and  differenti- 
ating clearly  between  vendors'  expert  demonstrators  and  instruc- 
tors and  other  of  their  agents,  it  is  Held,  That  where  a  carrier 
purchases  appliances,  materials,  or  supplies,  in  the  use  of  which 
instruction  and  supervision  of  employees  by  experts  are  essential 
to  proper  and  successful  results,  it  may,  in  the  contract  of  pur- 
chase, undertake  to  grant  free  transportation  over  its  own  line 
to  such  expert  demonstrators  and  instructors  as  are  furnished  by 
the  vendor  under  the  contract,  to  the  extent  and  only  to  the  ex- 
tent that  such  transportation  is  necessary  for  the  perfonnance  of 
their  duty  on  that  line ;  and  provided  that  no  such  expert  so 
traveling  under  free  transportation  shall  in  any  way  engage  in 
the  sale  of  goods  or  in  the  soliciting  or  taking  of  orders  therefor : 
Held  further,  That  such  experts  are  not  railway  employees  in  the 


Conference  Rulings.  907 

sense  that  they  may  be  given  free  transportation  to  travel  over 
one  road  or  system  for  the  purpose  of  reaching  another  road  or 
system  to  which  they  may  have  been  assigned  upon  Hke  duty. 

The  views  expressed  in  Conference  Ruling  .Vo.  208  as  to  the 
general  application  of  the  law  are  adhered  to ;  Conference  Rul- 
ings 7j-/  and  jj6,  in  which  the  principles  of  Conference  Ruling 
208  are  applied,  are  not  to  be  understood  as  being  modified  by 
anything  here  said. 

347.  ERROR  IX  STATIXG  COXCURREXCE  XUMBER. 
— Through  inadvertence  a  tariff  showed  an  erroneous  number  of 
a  lawful  concurrence  by  a  participating  carrier:  Held,  That  the 
tariff  is  not  invalidated  by  a  minor  error  of  that  character  but  is 
a  lawful  issue,  and  is  binding  upon  the  participating  carriers. 

348.  FABRICATIOX  OF  STRUCTURAL  STEEL.— In 
making  shipments  of  structural  iron  and  steel  the  consignor  in- 
tended to  take  advantage  of  the  privilege  of  fabricating  the  ma- 
terial in  transit,  but  failed  to  note  on  the  bill  of  lading  as  required 

by  the  tariff  "To  be  fabricated  at  ."     As  a  result  of  this 

omission  higher  charges  accrued :  Held,  That  the  Commission 
will  not  authorize  the  carrier  to  refund  the  additional  charges  re- 
sulting from  the  shipper's  own  error. 

349.  DESTRUCTIOX  OF  RECORDS.— The  sale  of  docu- 
ments, records,  and  papers  of  an  interstate  carrier  as  waste 
paper  is  held  to  be  a  lawful  destruction  of  such  records  within 
the  meaning  of  the  rules  and  regulations  of  the  Commission 
touching  the  destruction  of  records,  provided  all  other  require- 
ments under  those  rules  and  regulations  have  been  complied 
with. 


April  I,  igi2. 

350.  RATES  APPLICABLE  TO  SHIPMEXTS  STOPPED 
SHORT  OF  IXTEXDED  DESTIXATIOX,  AND  FARES  AP- 
PLICABLE TO  PASSEXGERS  DISCONTINUING  JOUR- 
NEYS.— Under  transit  tariffs  requiring  the  payment  of  the  full 
rate  to  final  destination  at  the  time  the  shipment  is  delivered  at 
the  transit  point,  it  sometimes  occurs  that  a  shipment  is  never 
forwarded  to  the  destination  to  which  charges  have  been  paid : 
Held,  That  it  is  not  unlawful  or  im])roper  in  such  cases  to  refund 
the  charges  that  have  been  paid   in  excess  of   what  the  lawful 


908  Conference  Rulings. 

charges  on  the  shipment  would  have  been  if  the  transit  point  had 
been  its  final  destination. 

Held  further,  That,  subject  to  the  time  limit  of  ticket,  the  same 
rule  applies  where  a  passenger  has  purchased  a  ticket  and  has 
abandoned  his  journey  at  a  point  short  of  the  destination  shown 
on  his  ticket  and  also  to  a  prepaid  shipment  of  freight  hat  is 
stopped  and  delivered  at  a  point  short  of  that  to  which  prepaid. 

351.  TELEGRAAIS  OF  SHIPPERS.— Upon  inquiry,  under 
Conference  Ruling  ji"/,  whether  carriers  may  send  at  their  ex- 
pense over  shippers'  names  telegrams  directing  the  routing  of 
certain  traffic :  Held,  That  carriers  may  not  pay  for  such  tele- 
grams.    (See  Ruling  363.) 


April  2,  IQI2. 

352.  FREE  TRAXSPORTATIOX.— A  carrier  that  has  ac- 
C|uired  a  railroad  by  foreclosure,  reorganization,  or  otherwise, 
may  lawfully  continue  to  issue  free  transportation  to  the  widows, 
during  widowhood,  and  minor  children,  during  their  minority,  of 
persons  who  died  while  in  the  service  of  the  company  formerly 
operating  the  road. 

353.  SHIPAIEXTS  BY  WATER.— In  the  application  of 
the  act,  a  shipment  by  water  from  one  port  to  another  in  the  ter- 
ritory of  the  United  States  is  to  be  regarded  as  coastwise  busi- 
ness ;  a  shipment  by  water  from  a  port  of  the  United  States  to  a 
port  of  any  foreign  country,  even  though  adjacent,  is  export 
business. 

354.  THROUGH  SHIPMENTS  MA  WATER  AXD 
RAIL. — Upon  inquiry,  and  referring  to  water  carriers  as  defined 
in  section  1  of  the  act ;  Held,  That  if  a  rail  carrier  and  a  water 
carrier  separately  publish  and  file  their  rates  applicable  to  through 
shipments,  traffic  over  such  route  may  lawfully  be  transported 
under  through  bills  of  lading,  even  though  the  rates  are  not  joint 
through  rates. 

Held  further,  That  a  water  carrier  may  not  lawfully  accept 
shipments  for  transportation  on  through  bills  of  lading  issued  by 
a  rail  carrier  unless  the  water  carrier  has  lawfully  published  and 
filed  rates  applicable  thereto. 

Held   further,    That    the    acceptance    by    a    water    carrier    of 


Conference  Rulings.  909 

through  traffic  on  through  bills  of  ladmg  issued  by  a  rail  carrier 
is  an  evidence  of  an  arrangement  for  continuous  carriage  which 
subjects  the  traffic  to  the  provisions  and  jurisdictions  of  our 
act. 

Held  furtJicr,  That  it  is  not  lawful  for  a  rail  carrier  to  issue 
through  bills  of  lading  under  an  arrangement  with  a  water  car- 
rier for  continuous  carriage  when  the  water  carrier  has  no 
rates  lawfully  published  and  filed  applicable  to  such,  transpor- 
tation. 

These  holdings  shall  not  be  construed  so  as  to  conflict  with 
Rule  71,  Tarifif  Circular  18-A,  which  covers  export  and  im- 
port traffic.  (Last  paragraph  as  amended  in  conference  No- 
vember  11,   1912.) 


April  8,   igi2. 

3  55.  FREE  TRANSPORTATION  OF  OFFICERS  OF 
NONOPERATING  COMPANY.— A  railroad  constructed  by 
municipal  trustees  was  afterwards  leased  under  a  contract  ante- 
dating the  act  to  regulate  commerce  and  providing  that  the 
lessee  company  would  issue  annual  passes  to  the  trustees  and 
their  agents  and  would  furnish  a  car  for  their  use  in  inspecting 
the  line. 

Upon  inquiry  whether  these  covenants,  being  a  part  of  the 
consideration  for  the  lease,  may  now  be  complied  with  by  the 
lessee  company,  it  is  Held,  That  officers,  directors,  and  other 
persons  connected  with  a  nonoperating  company  are  not  en- 
titled to  use  free  transportation.   (See  Rulings  95  and  263.) 


May  6,  igi2. 

356.  DISCLOSING  NA^IE  OF  CONSIGNEE.— Upon  in- 
quiry :  Held,  That  it  is  unlawful  for  a  carrier  to  disclose  to  a 
shipper  the  name  of  the  ultimate  consignee  of  a  shipment  re- 
consigned  in  transit  by  the  original  consignee.  (Sec.  1.5,  act  to 
regulate  commerce  as  amended  June  18,  1910.) 

357.  DEMURRAGE,  SWITCHING,  RECONSIGNMENT, 
AND  DIVERSION  CHARGES  ON  A  CARLOAD  SHIP- 
MENT TRANSFERRED  INTO  TWO  CARS.— In  case  a 
shipment  leaves  a  point  of  origin  in  a  single  car  and  for  the 
convenience   of   the   carriers   is   transferred   in   transit   into   two 


910  Conference  Rulings. 

cars  which  are  subsequently  detained  at  destination  beyond  the 
free  time,  demurrage  should  be  assessed  as  for  one  car  only,  so 
long  as  either  car  is  detained ;  and  in  such  cases  switching,  re- 
consignment,  and  diversion  charges  should  be  assessed  as  for 
one  car  only.  (Amending  Ruling  250;  see  also  Rulings  273, 
274,  331,  and  339.) 

358.  DEMURRAGE  AT  PORTS  RESULTING  FRO^I 
VESSEL  DELAY. — Coal  consigned  to  tidewater  was  held  in  the 
cars  at  the  port  awaiting  the  arrival  of  a  vessel  which  had  been 
delayed  by  storms :  Held.  That  the  delay  being  due  to  condi- 
tions beyond  the  control  of  the  rail  carrier  its  demurrage  charges 
might  not  lawfully  be  waived.     (See  Rulings  8  and  135.) 


May  /?,  19 1 2. 

359.  SHIPMENTS  TO  COLON,  PANAMA.— Colon,  al- 
though within  the  geographical  limits  of  the  Canal  Zone,  is 
governed  by  and  is  under  the  sovereignty  of  the  Republic  of 
Panama.  The  Commission  holds,  therefore,  that  shipments  from 
the  United  States  to  that  point  are  entitled  to  export  rates.  (See 
Ruling  389.) 


May  17,  igi2. 

360.  ALLOWANCES  UNDER  SECTION  15.— Held,  That 
an  allowance  purporting  to  be  made  under  section  15  must  be 
regarded  as  a  concession  from  the  rate  unless  duly  published  by 
the  carrier  in  its  tariffs  and  thus  made  available  to  all  shippers 
furnishing  a  like  facility  or  performing  a  like  service  of  trans- 
portation in  connection  with  their  traffic.  (See  Rulings  19,  78, 
132,  and  292.) 


June  3,  igi2. 

361.  FREE  TRANSPORTATION  TO  JOINT  EM- 
PLOYEE.— It  is  desired  to  move  to  another  station  a  messen- 
ger carried  on  the  pay  rolls  of  an  express  company  who  also 
acts  as  baggageman  for  a  rail  line,  45  per  cent  of  the  salary  paid 
him  by  the  former  being  refunded  to  it  by  the  latter :  Held, 
That  the  railroad  company  may  not  lawfully  transport  his  house- 
hold goods  free  or  at  rates  other  than  those  duly  established. 
(See  Ruling  208   (b),  also  Ruling  157.) 


Conference  Rulings.  911 

June  4,   ipi2. 

362.  ASSIGNMENT  OF  CLAni.— In  awarding  reparation 
the  Commission  will  recognize  an  assignment  by  a  consignor  to 
a  consignee  or  by  a  consignee  to  a  consignor,  but  will  not  recog- 
nize an  assignment  to  a  stranger  to  the  transportation  records. 
(Amending  Ruling  246.) 


June  8,  igi2. 

363.  PAYMENT  BY  CARRIER  OF  TOLLS  ON  TELE- 
GRAMS.— A  carrier's  tariiTs  provide  that  it  will  pay  for  tele- 
grams by  consignees  to  shippers  when  they  contain  nothing  in 
addition  to  the  necessary  specific  instructions  to  route  shipments 
over  its  rails:  Held,  That  such  a  rule,  when  lawfully  incor- 
porated in  the  tarififs  of  a  carrier,  is  not  objectionable.  (See 
Rulings  302,  Z27 ,  and  351.) 

364.  EXCHANGE  OF  SERVICES  BY  TELEGRAPH  AND 
RAILROAD  COMPANIES.— Under  the  amendatory  act  of  June 
18,  1910,  it  is  provided  "That  nothing  in  this  act  shall  be  con- 
strued to  prevent  telephone,  telegraph,  and  cable  companies  from 
entering  into  contracts  with  common  carriers  for  the  exchange 
of  services."  Upon  inquiry,  JJeld,  That  a  railroad  company  and 
a  telegraph  company  may  exchange  services  with  respect  to 
strictly  company  matters  on  the  basis  of  their  agreement.  (See 
Ruling  305.) 

365.  CARRIERS  ACTING  AS  FORWARDERS  OF  SHIP- 
MENTS.— Conference  Rulings  98  and  337  do  not  apply  when 
the  consignment  is  to  or  in  care  of  the  carrier  itself  for  the  pur- 
pose of  being  forwarded  by  that  carrier  from  the  point  of  re- 
ceipt, at  the  regular  rate,  over  its  own  line  and  connections 
according  to  routing  instructions,  and  when  no  lawful  through 
rate  is  defeated  and  no  discrimination  or  other  violation  of  the 
act  results.  In  no  case  may  the  same  person  act  as  the  agent  of 
the  carrier  and  the  shipper. 


June  in,  1Q12. 

366.  DEMURRAGE  CHARGES  RESULTING  FROM 
FAILURE  TO  GIVE  NOTICE  AT  NAMED  ADDRESS.— 
Upon  informal  complaint  it  is  JJeld,  That  when  the  definite  ad- 


912  CONFRRENCE    RuLINGS. 

dress  of  a  consignee  is  noted  upon  the  bill  of  lading  it  is  the 
duty  of  the  initial  and  of  each  succeeding  carrier  to  transmit 
that  address  to  connections  participating  in  the  movement,  and 
the  duty  of  the  delivering  carrier  to  send  notice  of  arrival  to 
that  address ;  the  carrier  at  fault  in  this  respect  will  be  held 
liable  for  demurrage  or  storage  charges  accruing  as  the  result 
of  the  failure  of  the  notice  to  reach  the  consignee.  (See  Ruling 
127.) 

367.  LIQUOR  SHIPMENTS  NOT  DELIVERED.— An  ex- 
press company  may  not  refund  the  prepaid  charges  on  shipments 
of  liquor  which  it  carried  to  destination  but  could  not  deliver 
under  a  local  law. 


October  7,  IQT2. 

368.  CARRIER  LOCATED  WHOLLY  WITHIN  A 
STATE. — Some  of  the  express  matter  carried  by  a  traction  com- 
pany of  an  express  company  between  points  within  a  state 
originates  at  or  is  destined  to  points  outside  the  state.  Upon 
inquiry.  Held,  That  the  traction  line  is  subject  to  the  act  to  reg- 
ulate commerce  and  must  file  reports  and  otherwise  comply 
with  its  requirements.     (See  Ruling  197.) 


October  S,  igi2. 

369.  COASTWISE  TRAFFIC  OVER  PANAMA  RAIL- 
ROAD.— Shipments  moving  between  ports  of  the  United  States 
by  vessel  and  the  Panama  Railroad  and  to  ultimate  destination 
bv  rail  are  interstate  and  must  take  interstate  rates  for  the  rail 
haul  from  the  port  to  destination. 

370.  ^riSROUTING  INVOLVING  LOSS  OF  TRANSIT 
PRIVILEGE. — Besides  stating  the  route  and  giving  instructions 
to  stop  the  car  in  transit  to  finish  loading  a  shipper  also  noted  a 
through  rate  on  the  bill  of  lading.  This  rate  did  not  apply  over 
the  indicated  route,  but  was  applicable  over  a  route  that  did  not 
permit  the  stop  specified.  Held,  That  the  initial  carrier,  not 
having  advised  the  shipper  of  the  facts,  is  liable  under  Confer- 
ence Ruling  286-f  for  the  higher  charges  that  resulted  from  fol- 
lowing the  routing  instructions. 


CoxFERExcE  Rulings.  913 

371.  FREE  TRAX SPORT ATIOX  OF  EMPLOYEES  OF 
BUREAUS  OF  CARRIERS.— The  following  persons  may  law- 
■fuUy  use   free  transportation : 

(a)  Employees  of  a  weighing  and  inspection  bureau  who  per- 
form and  supervise  the  weighing  of  cars  for  the  carriers  main- 
taining such  bureau  are  exclusively  engaged  upon  the  work  of 
such  carriers,  and  are  subject  to  the  direction  of  their  officials, 
but  report  to  and  are  paid  by  the  weighing  and  inspection  bureau. 

(b)  Employees  of  the  American  Association  of  Railroad 
Superintendents  known  as  chief  interchange  inspectors,  whose 
duties  are  to  settle  disputes  among  car  inspectors  at  junction 
points  where  traffic  is  interchanged  with  other  lines. 

372.  FREIGHT  .MO\'ED  FOR  AX  EXPRESS  COM- 
PAX'Y. — On  a  shipment  consigned  to  itself  under  a  joint  freight 
rate  an  express  company  is  not  entitled  to  the  benefit  of  a  rail 
carrier's  division  to  its  junction  with  the  line  over  which  the  ex- 
press company  operates. 

373.  REPAIR  OF  CARS  OX  FOREIGX  LIXES.— A  car- 
rier on  whose  line  a  car  was  damaged  made  an  order  on  a  con- 
necting line,  which  owned  the  car,  for  certain  castings  to  be 
delivered  to  it  at  the  junction  of  the  two  lines.  Held,  That  the 
former  line  was  a  shipper  over  the  line  of  the  owning  carrier 
and  must  pay  the  published  rate.     (See  Rulings  225  and  333.) 

374.  CAR  FERRY  COMPAXY  SUBJECT  TO  THE  ACT. 
— An  incorporated  company  operates  a  car  ferry  connecting  the 
two  interstate  rail  lines  by  which  it  is  owned.  It  separately  con- 
ducts its  own  afi^airs  and  keeps  its  own  accounts,  but  has  no 
direct  dealings  with  the  public.  Held.  That  the  ferry  company 
is  a  common  carrier  subject  to  the  act,  and  must  file  tariffs,  keep 
its  accounts,  and  make  reports  in  accordance  with  the  rule-?  and 
regulations  of  the  Commission. 

375.  DESTRUCTION  OF  RECORDS  OF  LESSOR  COM- 
PAXY. — A  corporation  owning  a  railroad  that  it  has  leased  to 
a  carrier  for  use  in  interstate  traffic  is  itself  subject  to  the  act 
and  must  designate  an  officer  to  have  charge  of  the  destruction 
of  its  records. 


914  Conference  Rulings. 

376.  REPARATION  CLAIMS  ON  THE  INFORMAL 
DOCKET. — In  view  of  the  provisions  of  section  4  of  the  act  to 
regulate  commerce,  as  amended  June  18,  1910,  section  (a),  par- 
agraph 1,  of  Conference  Ruling  200,  governing  the  practice  in 
special  docket  cases,  is  hereby  amended  so  as  to  read  as  follows : 

In  special  docket  cases  no  order  as  to  the  rate  for  the  future 
shall  be  entered  where  the  joint  rate  in  effect  at  the  time  the 
shipment  moved  exceeded  the  aggregate  of  the  intermediate 
rates  and  the  rates  have  been  subsequently  changed  in  such  man- 
ner that  at  the  time  the  order  of  the  Commission  is  entered  the 
through  rate  does  not  exceed  the  sum  of  the  intermediate  rates. 
(Modifying  RuHng  200  (a),  1.) 


October  14,  igi2. 

Zll.  USE  OF  COMMISSIONS  BY  POST-OFFICE  IN- 
SPECTORS \\'HEN  OFF  DUTY.— The  use  of  his  commission 
for  transportation  by  a  post-office  inspector  when  returning  to 
duty  from  a  pleasure  trip  is  unlawful.     (See  Ruling  95   (f).) 

378.  ENPORT  BILLS  OF  LADING.— The  rules  and  reg- 
ulations of  carriers  governing  bills  of  lading  on  export  traffic 
must  be  published  and  filed  with  the  Commission. 

379.  INTEREST  UPON  OVERCHARGE  CLAIMS.— 
L'pon  inquiry,  Held,  That  on  all  unsettled  claims  for  over- 
charges carriers  must  pay  interest  from  the  time  the  charges 
were  improperly  collected. 


October  ij,  IQ12. 

380.  REFUND  OF  UNUSED  PORTION  OF  PASSEN- 
GER TICKET. — A  passenger,  having  a  round-trip  ticket  for  an 
interstate  journey  with  stop-over  privileges,  stopped  off  at  an 
intermediate  point  on  the  trip  and  later  proceeded  to  destination. 
He  did  not  use  the  return  portion  of  the  ticket.  The  tariff  pro- 
vided for  redemption  in  such  cases  at  the  difference  between  the 
fare  paid  and  the  published  rate  to  the  point  where  the  trip 
was  discontinued.  There  were  in  eft"ect  between  the  starting 
point  and  destination  a  one-way  fare  with  stop-over  privileges, 
a  one-way  fare  for  a  continuous  passage,  and  one-way  fares  for 
continuous  passage  to  the  stop-over  point  and   from  that  point 


Conference  Rulings.  915 

to  destination.    The  latter  combination  was  lower  than  the  through 
fare  with  stop  over. 

Held,  That  the  refund  was  properly  made  on  the  basis  of  the 
difference  between  the  fare  paid  and  the  one-way  fare  with 
stop-over  privileges. 


November  ii,  1Q12. 

381.  BRIDGE  COMPANIES.— A  bridge  company  which 
does  not  own  or  operate  any  motive  power  or  cars  and  rents 
its  bridge  to  an  interstate  carrier  need  not  file  tariffs  with  the 
Commission. 

382.  MILEAGE  IN  PART  PAYMENT  FOR  TICKET.^ 
A  mileage  book  presented  in  part  payment  for  a  passenger  ticket 
must  be  accepted  for  transportation  to  the  farthest  station  cov- 
ered by  the  remaining  coupons,  the  passenger  to  pay  the  local 
fare  from  that  point  to  destination.     (See  Ruling  81.) 

383.  :\IISROUTING  SHIP.MENT.— The  address  of  the 
consignee  having  been  omitted,  a  shipment  arriving  at  destina- 
tion by  a  line  other  than  that  designated  in  the  routing  instruc- 
tions was  sent  to  a  storage  warehouse.  The  consignee  had  made 
inquiry  for  it  of  the  delivering  carrier  noted  on  the  bill  of  lad- 
ing. The  freight  rates  were  the  same  by  either  route.  Held, 
That  the  initial  carrier  is  liable  for  the  storage  and  drayage 
charges  resulting  from  misrouting  the  shipment. 

384.  CHARGES  FOR  MEALS  ON  DINING  CAR.— The 
Commission  has  no  jurisdiction  over  charges  made  for  meals 
on  dining  car. 

385.  HIGHER  PASSENGER  FARE  TO  INTERMEDI- 
ATE POINT  THAN  TO  MORE  DISTANT  POINT.— A 
higher  passenger  fare  was  charged  to  an  intermediate  point  than 
was  in  effect  to  a  more  distant  point  over  the  same  route.  Held, 
That,  the  discrimination  in  its  tariff  being  corrected,  the  Com- 
mission will  entertain  an  application  by  the  carrier  to  be  per- 
mitted to  make  refund  on  the  basis  of  the  lower  fare  to  the 
more  distant  point. 

386.  FREE  TRANSPORTATION  TO  THE  INSPECTOR. 
— A  carrier  purchases  all  its  crossties  from  one  source  and  the 
contract  provides  for  free  transportation  to  the  inspectors  of  the 


916  Conference  Rulings. 

contractor  while  traveling  to  inspect  and  purchase  the  ties.  Held, 
That  free  transportation  may  not  lawfully  be  extended  to  such 
inspectors.      ( See   Ruling  208-(f . ) 

387.  UNIFORM  BILL  OF  LADIXG.— The  uniform  bill  of 
lading  contains   the   following  clause : 

"The  value  of  the  property  ( being  the  bona  fide  invoice  price, 
if  any,  to  the  consignee,  including  the  freight  charges,  if  \n-&- 
paid),  at  the  place  and  time  of  shipment  under  this  bill  of  lad- 
ing." 

At  the  time  a  particular  shipment,  lost  in  transit,  was  made, 
the  market  price  of  a  commodity  had  advanced  beyond  the  price 
fixed  in  a  contract  previously  entered  into,  under  which  a  large 
quantity  had  been  purc^hased  for  future  delivery.  A  construc- 
tion of  the  clause  being  requested,  it  is  the  view  of  the  Com.- 
mission  that  the  provision  in  the  bill  of  lading  contained  in  the 
parentheses  above  quoted  does  not  apply  to  a  shipment  made 
several  weeks  later  than  the  contract  of  sale. 


December  2,  19 12. 

388.  TRANSPORTATION  OF  EXPLOSIVES.— The  reg- 
ulations of  the  Commission  touching  the  transportation  by  freight 
and  express  of  explosives  and  other  dangerous  articles,  together 
with  the  specifications  for  the  containers  thereof,  are  amended 
by  extending  their  application  to  company  materials  and  sup- 
plies of  that  nature. 

389.  TARIFFS  CONTAINING  EXPORT  OR  IMPORT 
RATES. — In  order  to  avoid  controversies  and  questions,  Held, 
That  tarififs  hereafter  issued  containing  rates  applicable  to  ex- 
port or  import  traffic  shall  specify,  by  inclusion  or  exclusion,  the 
countries  to  or  from  which  the  shipments,  to  which  such  rates 
are  applicable,  shall  move,  whether  such  countries  are  or  are 
not  adjacent  to  the  United  States. 

In  the  interest  of  clearness  the  tarifi"s  should  also  specify 
whether  or  not  shipments  to  or  from  Cuba,  the  Philippine  Is- 
lands, Porto  Rico,  or  the  Canal  Zone  are  included.  For  con- 
venience and  without  regard  to  the  status  and  political  relation 
of  the  Philippines,  Porto  Rico,  and  the  Canal  Zone  to  the  United 
States  they,  together  with  Cuba,  are  for  these  purjioses  to  be 
classed  with  foreign  countries.     (See  Ruling  359.) 


Conference;  Rulings.  917 

390.  AGENT'S  ERROR  IN  FIXING  TIME  LIMIT  TO 
PASSENGER  TICKET.— Under  a  tariff  providing  for  an  ex- 
tension of  the  time  limit,  when  the  privilege  of  stopover  on  a 
through  ticket  is  availed  of,  the  carrier's  agent  at  the  stopover 
point  attached  the  necessary  certificate  but  erroneously  showed 
an  expiration  date  not  sufficiently  in  advance  to  permit  the  holder 
to  reach  destination  by  a  continuous  trip  on  a  regular  train ;  and 
in  consequence  it  was  necessary  for  the  holder  to  pay  the  local 
fare  of  a  connecting  line  to  destination  from  the  point  where 
the  time  limit  expired. 

Held,  That  the  carrier  whose  agent  made  the  error  must  bear 
the  entire  burden  of  the  refund  of  the  additional  fare.  (See 
Rulings  167  and  277.) 

391.  FARE  PAID  UNDER  MISAPPREHENSION  OF  A 
PRRTLEGE  OFFERED  UNDER  A  THROUGH  TICKET.— 
A  passenger,  not  knowing  that  a  coupon  attached  to  his  through 
ticket,  and  good  for  passage  between  two  intermediate  points 
by  steamship,  might  be  exchanged  for  transportation  by  rail  be- 
tween those  points,  failed  to  make  the  request  required  under 
the  tariff  and  purchased  a  local  railroad  ticket  therefor. 

Held,  That  the  carrier  may  not  lawfully  refund  the  amount 
of  the  local  fare. 


December  g,  ipi2. 

392.  MISROUTING  INVOLVING  WRONG  TERMINAL 
DELIV^ERY. — A  shipment  made  with  instructions  for  delivery 
on  the  tracks  of  one  carrier  was  misrouted  and  arrived  at  desti- 
nation on  the  tracks  of  another  carrier.  It  could  have  been 
switched  to  the  proper  delivery  track  without  unreasonable  de- 
lay at  the  expense  of  the  carrier  at  fault.  Instead  of  request- 
ing this  the  consignee  drayed  the  shipment  to  his  plant.  Held, 
That  reparation  for  the  cost  of  drayage  could  not  be  allowed. 
(See  Rulings  234.  283,  and  286  (d).) 


December  lo,  ipi2. 

393.  REFUND  OF  PASSENGER  FARE.— The  holder  of 
a  round-trip  ticket  died  at  destination,  all  required  steps  for  ex- 
tending the  time  limit  for  the  return  trip  having  been  previously 
taken   except   the   affixing  of   the   holder's   signature.      I  lad   the 


918  CoxFERExcE  Rulings. 

signature  been  affixed  the  ticket  would  have  sufficed  for  the 
transportation  for  the  corpse.  Upon  inquiry,  Held,  That  refund 
may  be  made  by  the  carrier. 

394.  TURISDICTIOX  OVER  WIRELESS  ^lESSAGES.— 
The  Commission  considers  that  it  has  jurisdiction  over  wireless 
messages  from  a  commercial  station  in  the  United  States  to  a 
ship  at  sea,  whether  it  be  a  United  States  or  foreign  ship.  It 
does  not  consider  that  it  has  jurisdiction  over  messages  between 
two  American  ships  at  sea. 


December  i6,  IQ12. 

395.  VIOLATIONS  OF  THE  FOURTH  SECTION.— 
Confirming  the  general  principle  of  an  order  entered  and  an- 
nounced on  January  26,  1911,  it  is  Held,  That  when  a  carrier 
in  obedience  to  the  requirements  of  the  fourth  section  of  the 
act  has,  after  August  17,  1910,  corrected  discriminations  against 
intermediate  points,  it  may  not  lawfully  restore  such  discrimi- 
natory rates  unless  upon  formal  application  the  Commission  finds 
justifying  circumstances  and  authorizes  a  deviation  from  the 
long-and-short-haul  rule. 


February  10.  1913. 

396. 'special  reparation  ON  INFORMAL  COM- 
PLAINT. SUPERSEDING  RULING  220  (c).— Reparation 
under  informal  proceedings  will  be  authorized  in  instances  where 
the  tarifl:'  rate  has  been  applied,  upon  the  filing  of  an  application 
by  the  carrier  or  carriers  which  participated  in  the  transporta- 
tion of  the  property  in  question,  containing  an  admission  that 
the  rate  charged  was  unreasonable,  supported  by  a  statement  of 
the  facts  substantially  showing  that  the  charge  demanded  for  the 
transportation  service  performed  was  excessive,  that  within  a 
reasonable  time  a  tariff  naming  the  rate  upon  basis  of  which 
adjustment  is  sought  has  been  published,  and  that  such  rate  has 
been  made  lawfully  applicable  via  the  route  over  which  the 
shipment  moved.  The  Commission's  order  for  refund  on  ac- 
count of  a  reduced  rate  or  changed  tariff  regulation  will  require 
the  maintenance  of  such  rate  or  regulation  for  at  least  one  year. 


Conference  Rulings.  919 

Supplement  No.  1  to  Conference  Rulings  Bulletin  No.  6. 

Conference  Rulings  of  the  Interstate  Commerce  Commission 

Issued  June  1,  1914. 


Januarx  6,   ipiS- 

397.  REPARATION  FOR  MISROUTING.— Until  the 
Commission  otherwise  directs,  carriers  may  adjust  claims  aris- 
ing under  item  (/)  of  Conference  Ruling  286  without  first  bring- 
ing them  to  the  attention  of  the  Commission;  in  pursuing  thii 
course,  however,  they  must  accept  full  responsibility  for  the  cor- 
rect application  of  the  rule. 


January  ij,  igij. 

398.  FREE  TRANSPORTATION  OF  COLLEGE  SUP- 
PLIES.— A  college  maintained  largely  by  voluntary  contribu- 
tions provides  free  tuition  through  scholarships  for  worthy  and 
needy  pupils,  but  collects  tuition  from  all  students  who  are  able 
to  pay  it :  Held,  That  under  section  22  of  the  act  coal  contrib- 
uted to  the  institution  may  not  be  transported  by  carriers  at  other 
than  the  published  rates. 

399.  REPORTS  BY  BRIDGE  COMPANIES.— A  bridge 
company  which  has  leased  its  bridge  to  an  interstate  rail  line 
must  file  the  annual,  monthly,  and  other  reports  required  of 
lessor  companies  under  the  accounting  rules  of  the  Commission. 
(See  Ruling  381.) 

400.  PASSES  FOR  TRAIN  AUDITORS  EMPLOYED 
BY  AN  AUDIT  COMPANY.— An  adult  company  under  con- 
tract with  several  carriers  provides  train  auditors  to  collect  tick- 
ets;  they  do  no  other  work  and  may  be  transferred  from  road 
to  road  as  the  parties  to  the  contract  may  require.  Upon  in- 
quiry: Held,  That  a  trip  pass  may  be  issued  by  any  such  car- 
rier for  a  particular  journey  over  its  line  by  an  auditor  in  con- 
nection with  its  own  business,  but  that  annual  passes  must  not 
be  granted. 


920  Conference  Rulings. 

January  14,  1913. 

401.  COASTWISE  TRAFFIC  MOVING  ON  A 
THROUGH  BILL  OF  LADING  TO  INLAND  POINT.— A 
through  bill  of  lading  was  issued  on  a  shipment  routed  over  a 
rail-and-water  route  from  an  inland  point  in  one  state  to  an  in- 
land point  in  another  state.  Lender  instructions  from  the  con- 
signee the  shipment  was  delivered  by  the  coastwise  line  to  a 
forwarding  company  at  the  port  of  arrival,  to  be  delivered  by  it 
to  a  rail  line  for  carriage  to  the  inland  destination  as  a  local 
state  movement.  The  delivering  rail  line  advanced  the  charges 
of  the  initial  and  coastwise  lines  and  those  of  the  forwarding 
company  and  collected  them,  together  with  its  own  charges,  at 
destination.  The  sum  of  the  local  rates  thus  applied  exceeded 
the  through  published  rate  from  point  of  origin  to  destination. 
Held,  That  the  .through  rate  should  have  been  assessed  on  the 
shipment.     (See  Ruling  354.) 


February  j,   /p/J. 

402.  CONCURRENCE  BY  A  LESSOR  COMPANY  IN 
RATES  PUBLISHED  BY  A  LESSEE.— When  the  lessor  com- 
pany participates  in  the  sendee  with  its  engines  and  crews  and 
is  compensated  therefor  on  a  percentage  division  it  should  con- 
cur in  and  be  shown  as  a  party  to  the  tariffs  of  the  lessee  naming 
passenger  fares  and  freight  rates  over  the  lessor's  rails.  (See 
Ruling  341.) 


February  4,  1913. 

403.  STORAGE  CHARGES  ACCRUING  DURING  RE- 
CONSTRUCTION OF  A  LEASED  WAREHOUSE.— A  termi- 
nal company  may  not  cancel  charges  that  have  accrued,  under 
published  rates,  on  shipments  landed  and  stored  on  its  wharf 
with  its  consent  pending  the  repair  of  a  warehouse  which  it  had 
leased  to  the  shipper  and  which  had  been  destroyed  during  a 
storm. 


March  10,  19 13. 

404.  STORAGE  CHARGES  ACCRUING  BECAUSE  OF 
WEATHER  CONDITIONS.— Because  of  inclement  weather 
and  impassable  roads  shippers  failed  to  remove  less-than-carload 


Confeirence;  Rulings.  921 

freight  within  the  free  time  specified  in  the  tariffs  and  storage 
charges  resulted.  Upon  inquiry :  Held,  That  the  same  rule  may 
be  applied  to  storage  charges  as  to  demurrage  charges  if  so 
provided  in  the  tariff.     (See  Rulings  242  and  313.) 

405.  DEMURRAGE  RULES  APPLICABLE  TO  SHIP- 
MENTS.— Before  certain  shipments  were  removed  by  the  con- 
signee at  destination  amended  demurrage  rules  became  effective 
providing  charges  after  certain  free  time"  had  elapsed:  Held, 
That  the  rules  in  eff'ect  at  the  time  the  shipments  arrived  at  the 
demurrage  point  must  control. 


April  7,  ipis. 

406.  VIOLATION  OF  THE  FOURTH  SECTION.— A  vi- 
olation of  the  long-and-short-haul  clause,  having  been  canceled 
out  of  its  tariffs,  may  not  lawfully  be  restored  by  the  carrier 
without  the  special  authority  of  the  Commission,  even  though 
the  violation  was  in  existence  when  section  4  of  the  act  was 
amended  on  June  18,  1910.     (See  Ruling  395.) 

407.  COMMISSIONS  PAID  BY  TELEGRAPH  COMPA- 
NIES.— It  is  unlawful  for  a  telegraph  company  to  pay  to  the 
person,  firm,  or  company  in  whose  building  a  telegraph  office  is 
located  any  commission  on  the  messages  received  by  or  trans- 
mitted for  that  establishment. 


April  8,  191 3. 

408.  NOTICES  OF  ORAL  ARGUMENT.— Notices  of  the 
date  assigned  for  the  oral  argument  of  a  case  pending  before 
the  Commission  will  hereafter  be  sent  only  to  the  attorneys  who 
have  appeared  at  the  hearing  or  on  briefs  and  not  to  all  the 
railroads  named  on  the  pleadings. 

409.  APPLICATION  OF  AVERAGE  AGREEMENT  UN- 
DER UNIFORM  DEMURRAGE  RULES.— No  average  agree- 
ment made  under  the  uniform  demurrage  rules  may  properly 
combine  in  one  account  the  cars  of  more  than  one  consignee  , 
each  average  agreement  must  cover  the  business  of  one  consignee 
only.  Demurrage  agreements  may  not  lawfully  be  made  with 
draymen  or  with  ])ublic  elevators  serving  various  consignees. 

This   rule   is   not   intended   to  ])rohibit   the   application    of   the 


922  Conference  Rulings. 

average  agreement  at  a  public  elevator  or  warehouse  so  far  as 
it  applies  to  cars  consigned  to  the  elevator  or  warehouse  com- 
pany. 

410.  EXCHANGE  OF  PASSES  WITH  WIRELESS 
TELEGRAPH  COMPANIES.— It  is  the  view  of  the  Commis- 
sion that  passes  and  franks  may  lawfully  be  exchanged  betweev. 
wireless  telegraph  companies  and  other  common  carriers  sub- 
ject to  the  act.     (See  Ruling  394.) 

411.  LABOR  AGENT  MAY  NOT  LAWFULLY  RE- 
CEIVE PASSES. — The  proprietor  of  a  l-abor  agency,  who  fur- 
nishes laborers  to  railway  companies  and  contractors,  is  not  an 
employee  of  the  carriers  within  the  meaning  of  the  first  section 
of  the  act,  and  passes  may  not  lawfully  be  issued  tc  him. 

412.  PASSES  TO  AN  ATTORNEY  ENGAGED  IN  THE 
WORK  OF  A  CARRIER.— A  carrier  arranged  with  a  lawyer  to 
give  preferred  attention  to  its  railroad  business  at  a  monthly 
salary,  the  attorney  being  permitted  also  to  engage  in  general 
practice.  Upon  inquiry :  Held,  That  time  passes  may  not  law- 
fully be  issued  in  such  a  case  unless  substantially  all  the  attor- 
ney's time  is  devoted  to  the  work  of  the  carrier.  (See  Rulings 
95-a  and  208-a.) 

413.  SUPPLIES  SOLD  TO  EMPLOYEES  OF  CARRIER 
BY  A  CONTRACTOR  NOT  TO  BE  TRANSPORTED  FREE. 
— An  employment  agent  is  under  contract  with  an  interstate  car- 
rier to  furnish  it  with  track  laborers  and  to  keep  them  supplied, 
even  at  remote  points  along  its  line,  with  provisions,  foodstuffs, 
clothing,  etc..  which  they  purchase  of  him  from  time  to  time 
with  written  orders  upon  the  carrier  against  their  pay.  The  con- 
tractor does  no  business  with  the  general  public.  Held,  That 
the  supplies  may  not  lawfully  be  transported  free.  (See  Ruling 
208-c.) 

414.  PASSES  TO  WITNESSES  IN  CRIMINAL  CASES. 
L^pon  incjuiry :  Held.  That,  in  case  of  a  criminal  prosecution 
for  theft  of  property  from  a  carrier  subject  to  the  act,  the  car- 
rier may  lawfully  issue  to  witnesses  on  the  side  of  the  state  in- 
terstate passes  to  and  from  the  place  of  trial,  even  though  the 
witnesses  are  not  employees  of  that  or  any  other  common  car- 
rier.    (See  Ruling  319.) 


Conference;  Rulings.  923 

April  14,  19 1 3. 

415.  EXCHANGE  OF  BILLS  OF  LADING.— The  exchange 
at  an  intermediate  point  of  one  bill  of  lading  for  another,  show- 
ing a  different  consignor  or  consignee  or  a  different  destination, 
is  unlawful  except  in  connection  with  a  reconsignment  or  diversion 
authorized  in  the  tariff.     (See  Ruling  227.) 


May  6,  191 3. 

416.  CONSIGNEE  RELIEVED  OF  DEMURRAGE 
CHARGES  THAT  ACCRUED  AT  POINT  OF  ORIGIN.— A 
consignee  received  a  carload  shipment,  paid  the  freight  charges 
thereon  as  agent  for  the  shipper,  sold  the  goods,  and  remitted 
the  proceeds  to  the  shipper  after  first  deducting  the  freight 
charges.  About  six  months  afterwards  a  bill  was  presented  to 
the  consignee  for  demurrage  charges  which  accrued  at  the  ship- 
ping point.  The  demurrage  charges  were  not  shown  as  ad- 
vance charges,  but  a  clear  bill  of  lading  was  issued  by  the  car- 
rier. Upon  inquiry:  Held,  That  the  issuance  of  a  clear  bill  of 
lading  by  the  carrier  and  its  failure  to  bill  the  demurrage  as 
advance  charges  relieves  the  consignee  from  the  obligation  to 
pay  the  demurrage  charges,  and  the  initial  carrier  must  look 
elsewhere  for  their  payment. 

417.  FREE  TRANSPORTATION  FOR  TRAINED 
NURSE  IN  FAMILY  OF  EMPLOYEE.— Upon  inquiry 
whether  a  trained  nurse  is  entitled  to  free  transportation,  under 
section  1  of  the  act,  when  in  attendance  upon,  and  traveling  with, 
an  employee  of  a  carrier,  who  is  himself  entitled  to  free  trans- 
portation, or  with  one  of  his  family,  the  Commission  affirms  its 
definition  of  the  term  "families"  as  contained  in  Conference 
Ruling  95-c  and,  conforming  to  its  uniform  practice  with  re- 
spect to  such  matters,  declines  to  determine  whether  particular 
individuals  are  eligible  to  receive  free  transportation. 


May  12,  19 1 3. 

418.  INTERSTATE  CARRIER  DEFINED.— An  electric 
street  railway,  with  a  large  ])assenger  traffic  and  a  substantial  in- 
trastate freight  movement,  derives  a  very  small  percentage  of  its 
revenue   from   shipments   moving  between   interstate   ])oints.      It 


924  CoNFKRENCK  Rulings. 

asserts  that  its  entire  freight  service,  both  state  and  interstate, 
is  performed  as  a  matter  of  accommodation  to  patrons  along 
its  line. 

Upon  inquiry :  Held,  That  if  a  company  engages  in  inter- 
state commerce  at  all  it  thereby  becomes  subject  to  the  act  and 
is  amenable  to  its  provisions  with  respect  to  making  statistical, 
annual,  and  other  reports  to  the  Commission  and  must  file  tar- 
ifl's.     (See  Rulings  197  and  368.) 

419.  REPARATIOX  ON  THE  BASIS  OF  STATE 
RATES. — Upon  further  consideration  Conference  Ruling  2^1  is 
modified  as  follows : 

The  Commission  will  not  recognize  as  a  basis  for  reparation 
any  rate  that  is  not  on  file  with  it,  except  that  in  misrouting 
cases  a  lower  state  rate  not  on  file  here  may  be  accepted  as  the 
basis  for  reparation  when  officially  verified  by  the  local  au- 
thorities. 


June  ?,  70/ ?. 

420.  JURISDICTION  0\'ER  TELEPHONE  COMPA- 
NIES IN  PORTO  RICO.— It  is  the  view  of  the  Commission 
that  it  has  no  jurisdiction  over  the  service  and  rates  of  telephone 
companies  the  lines  of  which  are  wholly  within  Porto  Rico. 

421.  A  CARRIER  ^lAY  NOT  LEASE  ITS  ELE\\\TORS 
AT  A  NOMINAL  RENTAL.— An  interstate  car-icr  desires  to 
lease  to  a  grain  dealer  at  a  nominal  rental  an  elevator  wh'ch  has 
not  been  in  use  for  some  time,  and  which  the  carrier  is  anxious 
to  dispose  of  because  the  operation  of  the  elevator  would  attract 
business  to  the  road.  Upon  inquiry :  Held,  That  such  a  trans- 
action would  be  illegal.      (See  Ruling  94.) 


J}ine  5,   JO/?. 

422.  JURISDICTION  OA'ER  TRAFFIC  MOVING  ON 
THROUGH  BILL  OF  LADING  TO  HAWAII.— A  steamship 
company  filed  a  proportional  tariff  with  the  Commission  provid- 
ing export  commodity  rates  from  a  port  in  the  L'nited  States  to 
a  port  in  the  territory  of  Hawaii.  The  traffic  was  covered  by 
through  bills  of  lading  from  inland  points  in  the  United  States 
to  the  port  of  transshipments  and  moved  under  tariffs  filed  with 
the  Commission.     Upon  inquiry :  Held,  That  under  the  Panama 


COXFEREXCE    RULIXGS.  925 

Canal  act  the  Commission  has  jurisdiction  over  shipments  mov- 
ing under  the  steamship  company's  proportional  tariff.  (See 
Rulings  155  and  201.) 

423.  COMBINATION  RATE  MAY  NOT  BE  APPLIED 
UNTIL  JOINT  THROUGH  RATE  IS  CANCELLED.— A 
mixed  carload  shipment  moved  under  a  joint  mixed  carload  rate. 
There  was  also  in  effect  at  the  time  of  the  shipment  a  combination 
carload  rate  on  the  heavier  weighted  commodity  in  the  mixture 
and  a  through  less-than-carload  rate  on  the  lighter  weighted  com- 
modity, which  made  a  lower  charge  than  that  based  on  the  joint 
mixed  carload  rate.  The  joint  mixed  carload  rate  had  not  been 
canceled.  L'pon  inquiry :  Held,  That  a  refund  to  the  basis  of 
the  lower  combination  could  not  lawfully  be  made. 

424.  ABSORPTION  OF  SWITCHING  CHARGES  OF  AN 
INDUSTRY. — An  industry  operates  its  own  rails  as  a  plant  fa- 
cility to  a  connection  with  the  plant  rails  of  another  industrial 
concern,  the  latter  rails,  on  the  other  side  of  the  plant,  connect- 
ing with  the  rails  of  an  interstate  carrier.  The  trunk  line  desires 
to  extend  its  service  to  the  rails  of  the  first  industry.  The  in- 
termediate industry  refuses  trackage  rights  to  the  carrier  but  will 
continue  itself  to  switch  cars  to  it,  and  will  accept  compensation 
therefor  from  the  carrier  instead  of  from  the  other  industry, 
provided  this  course  does  not  subject  it  to  the  act  as  a  common 
carrier. 

It  is  the  view  of  the  Commission  that  the  service  performed  by 
the  intermediate  industry  is  a  service  for  the  shipper  and  not 
for  the  carrier  and  that  the  carrier  may  not  lawfully  absorl)  the 
switching  charge  of  the  intermediate  industry. 

425.  REPARATION  CLAIMS  ON  THE  INFORMAL 
DOCKET. — Upon  further  consideration  Conference  Ruling  ?7(5 
is  amended  to  read  as  follows : 

In  special  docket  cases  no  order  as  to  the  rate  for  the  future 
shall  be  entered  where  the  joint  rate  in  effect  at  the  time  of  ship- 
ment exceeded  the  aggregate  of  the  intermediate  rates  and  the 
rates  have  been  subseciuently  changed  in  such  a  manner  as  that 
at  the  time  the  order  of  the  Commission  is  entered  the  through 
rate  does  not  exceed  the  sum  of  the  intermediate  rates,  or  in 
cases  where  at  the  time  the  shipment  moved  the  rate  for  a  short 
haul  was  greater  than  the  rate  for  a  longer  haul  over  the  same 


926  Conference  Rulings. 

line  or  route,  in  the  same  direction,  the  shorter  being  inchided 
within  the  longer  distance  and  the  rates  have  been  subsequently 
changed  in  such  a  manner  that  at  the  time  the  order  of  the  Com- 
mission is  entered  the  rate  for  the  shorter  distance  does  n-  t 
exceed  the  rate  for  the  longer  distance. 


June  0,  1913. 

426.  TIME  PASSES  TO  LOCAL  ATTORNEYS,  SUR- 
GEONS. ETC. — The  Commission  adheres  to  the  ruling  many 
times  repeated  that  it  is  unlawful  for  an  interstate  carrier  to 
issue  time  passes  to  local  attorneys,  surgeons,  and  others,  who 
do  not  devote  substantially  all  their  time  to  the  work  or  business 
of  the  carrier.  The  principle  of  Conference  Ruling  208-a  is 
reaffirmed. 

427.  INDLSTRL\L  SWITCHING  TRACKS.— A  earner 
may  not  lawfully  build  a  switch  track  inside  the  plant  boundary 
of  an  industrial  company  without  adequate  compensation.  (See 
Ruling   110.) 

428.  PAYMENT  BY  RAIL  CARRIERS  OF  ADVANCE 
CHARGES  ON  IMPORT  TRAFFIC— A  rail  carrier  may  not 
advance  charges  to  an  ocean  carrier  on  import  traffic  except 
under  a  proper  provision  therefor  in  its  tariffs.  \Mien  such  ad- 
vance charges  are  made  the  freight  bill  of  the  rail  line  must 
show  in  separate  items  the  charges  so  advanced  and  the  charges 
of  the  inland  carrier  or  carriers ;  it  must  also  show  the  tariff 
rate  or  rates  of  the  inland  carrier  or  carriers.  The  name  of  the 
ocean  carrier  to  which  the  charges  are  advanced  must  also  be 
shown. 

In  order  that  carriers  may  have  time  in  which  to  adjust  their 
tariffs  in  conformity  herewith  this  ruling  will  become  eft'ective 
on  August  15,  1913. 


June  16,   1913. 

429.  FREE  OR  REDUCED  RATE  TRANSPORTATION 
TO  FAMILIES  AND  HOUSEHOLD  GOODS  OF  POSTAL 
CLERKS. — The  law  does  not  authorize  free  or  reduced  rate 
transportation  for  the  families  and  household  goods  of  postal 
clerks  whose  headquarters  were  changed  for  the  convenience  of 
a  carrier. 


Conference  Rulings.  927 

430.  TIE  INSPECTORS  NOT  ENTITLED  TO  FREE 
TRANSPORTATION. — A  man  who  has  a  contract  to  furnish 
ties  to  an  interstate  carrier  may  not  lawfully  have  free  trans- 
portation as  a  tie  inspector. 

431.  REDUCED  RATE  TRANSPORTATION  FOR  CON- 
VICTS UNLAWFUL.— It  is  the  view  of  the  Commission  that 
reduced  interstate  fares  may  not  be  granted  by  carriers  for 
transporting  to  the  penitentiary  persons  convicted  in  the  United 
States  courts  for  violation  of  Federal  Laws. 


June  i8,  igij. 

432.  WAR'ER  OF  UNDERCHARGES.— Upon  further  con- 
sideration the  time  limit  within  which  uncollected  undercharges 
may  be  brought  to  the  attention  of  the  Commission  for  authoriza- 
tion of  waiver  is  extended  from  30  to  90  days.  (Modifying  Rul- 
ing 258.) 


June  2S>  ^9^3- 

433.  SHIPPER  LIABLE  FOR  HIS  ERROR  IN  MARK- 
ING L.  C.  L.  SHIPMENTS.— Besides  being  expressly  so  pro- 
vided in  the  rules  of  all  freight  classifications,  it  is  on  broad 
general  grounds  the  duty  of  a  shipper  correctly  to  mark  packages 
of  less-than-carload  freight  intended  for  transportation,  and  when 
so  marked  the  carrier  is  held  to  a  strict  responsibility  for  their 
safe  delivery  at  destination. 

A  package  of  merchandise  was  addressed  by  a  shipper  to  Lake 
City,  Fla.,  instead  of  Lake  City,  S.  C.  Held,  That  the  shipper 
making  the  error  must  bear  the  burden  of  the  resulting  freight 
charges,  and  the  fact  that  the  correct  address  was  noted  on  the 
bill  of  lading  is  not  material.  Parlin  &  Orendorf  Plow  Co.  v. 
United  States  Express  Co.,  26  I.  C.  C.  561,  reaffirmed. 


July  2^,  1913. 

434.  PASSES  TO  OFFICIALS  OF  RAILROADS  IN  AD- 
JACENT FOREIGN  COUNTIES.— Free  interstate  transporta- 
tion may  lawfully  be  issued  to  officials  of  any  railroad  in  an  ad- 
jacent foreign  country  which  has  filed  with  this  Commission  joint 
tariffs  and  concurrences  in  connection  with  interstate  carriers  in 


928  Conference  Rulings. 

the   United   States  without   reservation  as  to  the  Commission's 
jurisdiction. 


July  24,  1913. 

435.  DESTRUCTION  OF  RECORDS.— It  is  the  view  of  the 
Commission  that  all  maps,  profiles,  plans,  specifications,  esti- 
mates of  work,  records  of  engineering  studies,  field  books,  and 
other  records  pertaining  to  the  physical  property  of  carriers 
come  within  the  prohibition  of  destruction  contained  in  section 
20  of  the  act,  and  as  such  shall  not  be  destioyed  or  otherwise 
di'iposed  of  unless  their  destruction  b'C  specifically  authorized  in 
the  orders  of  the  Commission  in  the  matter  of  the  destruction 
of  records.  (See  orders  of  the  Commission  govt;rniMg  Mie  de- 
struction of  records.) 


July  2fi,  19 1 3. 

436.  PASSES  TO  DIRECTORS  OF  A  CARRIER  IN  THE 
HANDS  OF  RECEIVERS.— When  the  management  of  a  rail- 
road company  has  been  placed  in  the  hands  of  receivers  and  the 
officers  and  directors  of  the  railroad  company  are  not  employed 
by  the  receivers :  Jield,  That  such  officers  and  directors  are  not 
entitled  to  free  transportation. 

437.  E^IBARGOES  ON  ACCOUNT  OF  REVOLUTION 
IN  ADJACENT  FOREIGN  COUNTRIES.— Embargoes  against 
the  receipt  of  freight  have  been  established  by  Mexican  railroads 
at  dififerent  times  on  account  of  revolutionary  troubles  in  Mexico. 
Upon  inquiry :  Jield,  That  interstate  carriers  in  the  United  States 
under  the  special  circumstances  will  be  permitted  to  file  with  the 
Commission  the  proper  application  for  authority  to  establish  on 
short  notice  tarift's  naming  the  conditions  and  rates  under  which 
they  will  return  or  otherwise  dispose  of  property  billed  to  points 
in  Mexico,  but  which  they  have  been  unable  to  deliver  because 
of  the  revolutionary  conditions  in  that  country.  It  is  understood 
that  the  tarift's  will  arrange  that  those  carriers  which  particii>ated 
in  the  haul  within  the  United  States  will  prorate  the  expenses  of 
per  dieui,  storage,  loading  and  unloading  of  the  shipments  or  of 
their  return  to  the  points  of  origin. 

438.  REFUND  OF  PASSENGERS  FARES.— A  ticket  was 
purchased  for  an  interstate  journey  during  a  time  of  high  water. 


Conference;  Rulings.  929 

the  agent  stating  that  through  trains  were  being  operated  without 
difficulty  or  delay.  L^pon  arrival  of  the  train  at  an  intermediate 
point  the  conductor  informed  the  passenger  that  the  train  would 
be  abandoned  on  account  of  high  water.  The  passenger  then 
purchased  a  ticket  back  to  the  point  of  origin.  Upon  inquiry  : 
Held,  That  a  refund  of  all  the  fares  paid  on  the  trip  may  be 
made,  provided  the  railroad  company  publishes  a  general  tarifif 
rule  providing  a  refund  of  fares  to  all  passengers  affected  by  such 
circumstances  and  conditions. 

439.  COMPANY  :MATERIAL  HAULED  OVER  AN- 
OTHER LINE  UNDER  TRACKAGE  RIGHTS.— A  carrier 
having  trackage  rights  permitting  it  to  haul  general  traffic  may 
haul  its  own  company  material  over  the  leased  track  as  over  its 
own  rails.  In  the  case  passed  upon  in  Conference  Ruling  if,^ 
there  was  no  arrangement  for  handling  commercial  freight  over 
the  leased  track. 

440.  DESTRUCTION  OF  RECORDS.— An  express  com- 
pany has  retired  from  business  and  asks  permission  to  destroy 
certain  of  its  records :  Held,  That  in  the  absence  of  special  per- 
mission by  the  Commission  the  records  must  not  be  destroyed 
except  under  the  rules  of  the  Commission. 

441.  TARIFFS  COVERING  ABSORPTION  OF  DRAY- 
AGE  CHARGES. — The  absorption  of  drayage  charges  being 
under  consideration,  the  Commission  holds : 

(a)  Where  there  is  an  additional  transfer  or  drayage  charge 
in  connection  with  a  through  shipment,  the  carriers'  tariffs  nuist 
specify  what  that  charge  shall  be. 

{b)  If  such  drayage  or  transfer  charge  is  absorbed,  in  whole 
or  in  part,  by  a  carrier,  the  tariffs  must  show  the  amount  of  such 
transfer  charge  that  will  Ijc  absorbed. 

ic)  A  drayage  firm  is  not  a  proper  party  to  a  joint  tariff  nor 
is  it  a  carrier  under  the  provisions  of  our  act ;  therefore,  no 
tariff's  can  properly  be  filed  by  it. 

((/)  There  is  no  provision  in  the  law  which  requires,  and  the 
Commission  has  no  authority  to  require,  a  carrier  to  confine  such 
drayage  to  one  drayman  or  one  firm  of  draymen. 

—30 


930  Confe:rence:  Rulings. 

{c)  The  responsibility  in  case  of  loss  and  damage  while  a  ship- 
ment is  in  charge  of  a  truckman  to  whom  it  has  been  committed 
by  the  carrier  is  a  question  for  the  carrier  to  resolve,  and  is  not 
for  our  determination. 

442.  FEEDIXG  AND  GRAZING  IN  TRANSIT.— Co;//^r- 

cncc  Ruling  i/  is  amended  to  read  as  follows : 

In  connection  with  the  published  privilege  of  feeding  and 
grazing  in  transit,  or  where  carriers  are  required  to  feed  live 
stock  in  transit,  under  the  provision  of  an  act  approved  June  29, 
1906,  commonly  called  the  28-hour  law,  carriers  may  lawfully 
provide  in  their  tarififs  that  they  will  furnish  feed  at  current 
market  prices  and  bill  the  cost  thereof,  together  with  an  addition 
not  exceeding  10  per  cent  of  such  cost  to  cover  the  value  of  their 
services,  as  advance  charges. 


October  /,  iQij. 

443.  THROUGH  RATE  ONLY  LAWFUL  RATE  FOR 
THROUGH  SHIPAIENTS.— Upon  inquiry  as  to  whether  a 
through  distance  tarifif  rate  should  be  applied  in  cases  where  a 
combination  rate,  made  up  of  a  rate  to  an  intermediate  point  and 
a  distance  tariff  rate  beyond,  makes  a  lower  through  charge : 
Held,  That  the  through  rate  is  the  only  lawful  rate.  (See  Rul- 
ing220-^.) 

444.  AD\'ANCES  OF  CUSTOMHOUSE  BROKERAGE 
FEES. — Rail  carriers  may  properly  advance  customhouse 
brokerage  i'ees  and  import  duties  and  charges  only  when  proper 
provision  therefor  is  made  in  their  published  tarifits. 

445.  CHECKING  SAMPLE  BAGGAGE.— When  carriers' 
tariffs  provide  for  checking  sample  baggage  and  define  sample 
baggage  as  that  which  is  carried  for  display  and  not  for  distribu- 
tion or  sale,  it  is  not  lawful  to  distribute  or  sell  articles  contained 
in  such  baggage  at  any  point  to  which  it  has  been  so  checked. 
Such  articles  may  lawfully  be  distributed  or  sold  at  any  point  to 
which  they  are  shipped  by  mail,  freight,  or  express,  and  they 
may  lawfully  be  so  shipped  from  a  point  to  which  they  have  been 
checked  as  baggage  for  use  as  samples  or  for  display.  (See  Rul- 
ing 455.) 


Conference  Rulings.  931 

November  4,  19 13. 

446.  PASSES  TO  STATION  AGENT  WHO  DEVOTES 
ONLY  PART  TIME  TO  RAILROAD  DUTIES.— Upon  in- 
quiry: Held,  That  a  station  agent  employed  by  a  railroad  com- 
pany may  not  lawfully  receive  free  transportation  when  he  em- 
ploys other  persons  to  perform  his  duties  so  that  he  may  devote 
the  greater  part  of  his  time  to  other  business.  ( See  Ruling 
208-a.) 

447.  APPLICATION  OF  FOURTH  SECTION.— The  pro- 
visions of  the  fourth  section  apply  where  the  point  of  origin  is  in 
an  adjacent  foreign  country  and  the  intermediate  point  and  more 
distant  point  of  destination  are  in  the  L'nited  States,  or  where 
the  point  of  origin  and  the  intermediate  point  are  in  the  United 
States  and  the  more  distant  point  of  destination  is  in  an  adjacent 
foreign  country.     (See  Ruling  318.) 

448.  FREE  TRANSPORTATION  TO  MEMBERS  OF 
FAMILIES  OF  EMPLOYEES  OF  BUREAUS  OF  CAR- 
RIERS.— L^pon  inquiry  it  was  agreed  that  Conference  Ruling 
3/1,  holding  that  employees  of  bureaus  maintained  by  common 
carriers  may  lawfully  use  free  transportation,  must  necessarily 
be  understood  as  meaning  that  members  of  their  families  may 
also  use  free  passes. 


December  i,  1913. 

449.  FREE  TRANSPORTATION  OF  VETERINARY 
SURGEONS. — A  veterinary  surgeon  not  carried  regularly  on 
the  pay  rolls  of  a  carrier  but  engaged  by  the  carrier  to  examine 
live  stock  offered  for  shipment  or  to  care  for  injured  stock,  may 
not  be  furnished  with  a  term  pass,  but  may  lawfully  use  a  trip 
pass  over  the  lines  of  a  carrier  when  performing  a  bona  fide  serv- 
ice for  it.     (  See  Rulings  208-a  and  208-6.  j 


December  4,  1913. 

450.  TARIFFS  OF  A  RAILROAD  SYSTEM— THE 
TRADE  NAME.— The  tariffs  and  concurrences  of  a  railroad 
system  must  show,  in  addition  to  its  trade  name,  the  corporate 
title  or  titles  of  the  various  lines  of  which  the  system  is  com- 
posed. 


932  Conference;  Rulings. 

January  6,  IQ14. 

451!  DEMURRAGE  CHARGES  ON  DAMAGED  SHIP- 
MENTS.— The  uncertainty  of  a  consignee  as  to  whether  or  not 
he  will  accept  a  damaged  shipment  does  not  justify  the  carrier 
in  waiving  the  demurrage  charges  accruing  on  the  shipment 
pending  his  decision. 

452.  FREE  TRANSPORTATION  OF  PROPERTY  FOR 
TOWNSHIPS  AND  COUNTIES.— Upon  inquiry:  Held. 
That  townships  and  counties  are  municipalities  within  the  mean- 
ing of  section  22  of  the  act  to  regulate  commerce  and  carriers 
may  lawfully  transport  their  property  free  or  at  reduced  rates. 
(See  Rulings  ?>2>.  36,  297,  and  311.) 

453.  CHANGE  OF  ROUTE  BY  CONSIGNEE.— Upon  in- 
quiry as  to  whether  the  consignee  of  a  shipment  moving  under 
a  straight  bill  of  lading  has  a  right  to  vary  the  original  routing 
instructions  given  by  the  shipper,  the  Commission  adheres  to' 
Conference  Ruling  jji-  to  the  effect  that  the  route  designated  by 
the  shipper  shall  be  observed. 


January  12,  IQ14. 

454".  FREE  TRANSPORTATION  FOR  CUSTOMS 
BROKER.— A  customs  broker  employed  by  a  carrier  on  a  com- 
mission basis  and  not  paid  a  regular  salary  and  who  does  not 
devote  substantially  all  his  time  to  the  service  of  the  company 
is  not  entitled  to  use  free  transportation.     (  See  Ruling  208-a.) 


February  5,  IQ14. 

455.  SALE  OF  PROPERTY  TRANSPORTED  AS  BAG- 
GAGE.— Upon  inquiry  as  to  whether  or  not  it  is  unlawful  for  a 
person  to  sell  property  transported  as  baggage  and  upon  which 
excess  baggage  charges  on  the  entire  weight  are  paid :  Held. 
That  if  the  carrier's  tariffs  make  provision  for  the  transportation 
of  such  property  at  excess  baggage  rates  on  the  entire  weight  it 
would  not  be  in  violation  of  the  law  to  dispose  of  the  property 
by  sale  or  otherwise.     (See  Ruling  445.) 


March  2,  IQ14. 

456.  WRITTEN     NOTICE     TO     CARRIER     CONSTI- 
TUTES PRESENTATION  OF  CLAIM.— It  is  the  view  of  the 


Conference;  Rulings.  933 

Commission  that  the  provision  in  the  uniform  bill  of  lading,  re- 
quiring that  claims  for  loss,  damage,  or  delay  be  made  within  a 
period  of  four  months  after  the  shipment  was  made,  is  legally 
complied  with  when  the  shipper,  consignee,  or  the  lawful  holder 
of  the  bill  of  lading,  within  the  period  specified,  files  with  the 
agent  of  the  carrier,  either  at  the  point  of  origin  or  the  point 
of  delivery  of  the  shipment,  or  with  the  general  claims  department 
of  the  carrier,  a  claim  or  a  written  notice  of  intended  claim,  de- 
scribing the  shipment  with  reasonable  definiteness.  In  all  cases 
the  provisions  of  the  standard  form  for  the  presentation  of 
claims,  which  was  approved  by  the  Commission  on  December  2, 
1913,  should  be  complied  with  so  far  as  possible,  and  proof  or 
evidence  of  the  claim  should  be  presented  to  the  carrier  within  a 
reasonable  time. 


March  j,  -fp-f-/. 

457.  WRITTEN  STATEMENTS  OF  RATES  FUR- 
NISHED BY  CARRIERS.— It  is  the  understanding  of  the 
Commission  that  under  section  6  of  the  act  carriers  are  required 
to  make  written  statements  as  to  rates  onl}'  in  relation  to  ship- 
ments about  to  be  made  or  shipments  affected  by  contracts  about 
to  be  entered  into,  and  that  the  provisions  of  that  section  do  not 
require  carriers  to  expend  their  time  and  labor  in  making  such 
statements  upon  demands  therefor  by  individuals  wishing  to  is- 
sue books  or  notices  of  rates,  or  for  other  purely  speculative  pur- 
poses. 


March  i6,  19 14. 

458.  LOSS  OF  RETURN  PORTION  OF  PASSENGER 
FARE  TICKET  BY  AGENT  OF  CARRIER.— The  return 
portion  of  a  passenger-fare  ticket  was  lost  by  the  agent  of  a  car- 
rier, and  the  carrier  was  obliged  to  furnish  the  traveler  another 
ticket  upon  which  to  complete  the  return  journey.  Upon  inciuiry: 
Held,  That  the  carrier  at  fault  must  assume  the  entire  loss  and 
pay  to  each  carrier  interested  its  proportion  of  the  value  of  ticket 
furnished  in  lieu  of  the  return  portion  of  ticket  lost.  If,  how- 
ever, the  return  portion  of  ticket  is  later  found,  the  carriers  re- 
ceiving settlement  foi»  the  ticket  furnished  in  lieu  thereof  may 
properly  return  the  amounts  received  in  settlement  of  the  addi- 
tional ticket  furnished. 


934  Conference  Rulings. 

April  13,  1914. 

459.  PASSES  FOR  SUPERINTENDENT  OF  MAIL 
SERVICE  OF  THE  CANADIAN  GOVERNMENT.— It  is 
the  view  of  the  Commission  that  free  annual  transportation  may 
not  lawfully  be  issued  to  a  superintendent  of  mail  service  of  the 
Canadian  Government. 

460.  TELEGRAMS  AND  CABLEGRA^IS.— The  practice 
by  telegraph  and  cable  companies  of  returning  to  patrons  the  orig- 
inal telegrams  or  cablegrams  in  support  of  their  bills  is  unlawful. 
Such  documents  must  be  retained  in  conformity  with  the  regu- 
lations of  the  Commission  governing  the  destruction  of  records 
of  telephone,  telegraph,  and  cable  companies. 


April  14,  1914. 

461.  WATER  CARRIERS  CONTROLLED  BY  OTHER 
COMMON  CARRIERS.— Section  5  of  the  act  as  amended  by 
the  Panama  Canal  act  prohibits  common  carriers  subject  to  the 
act  to  have,  after  July  1,  1914,  any  interest,  directly  or  indirectly, 
in  any  common  carrier  by  water,  or  any  vessel  carrying  freight 
or  passengers,  with  which  said  carrier  does  or  may  compete  for 
traffic. 

The  manifest  purpose  of  this  law  is  to  bring  about  discontinu- 
ance of  common  ownership  or  control  of  water  carriers  except 
in  those  instances  in  which,  after  investigation  and  hearing,  it 
is  found  that  such  operation  is  in  the  interest  of  the  public  or  of 
advantage  to  the  convenience  and  commerce  of  the  people,  and 
neither  excludes,  prevents,  nor  reduces  competition  on  the  route 
by  water.  The  act  does  not  in  specific  words  authorize  the  con- 
tinuance of  such  common  ownership  or  control  beyond  July  1, 
1914,  pending  the  decision  of  the  Commission  on  application 
relative  thereto ;  but  it  is  provided  that  any  application  filed  be- 
fore July  1,  1914,  may  be  considered  and  granted  thereafter.  It 
is  not  conceivable  that  the  Congress  intended  that  the  service 
should  be  withdrawn  from  the  public  on  July  1,  1914,  if  for 
good  and  sufficient  reasons  it  had  been  impossible  for  the  Com- 
miss^'on  to  determine  the  question  presented  in  the  application 
before  that  date.  Although  the  language  e'mployed  is  diiterent.  it 
seems  that  the  legislative  intent  was  similar  to  that  expressed  in 


Conference  Rulings.  935 

the  amended  fourth  section  of  the  act  and  in  the  safety  apphance 
acts. 

The  Commission  therefore  interprets  the  amendment  to  sec- 
tion 5  of  the  act  as  contemplating  and  authorizing  a  continuance 
of  any  existing  common  ownership  or  control  after  July  1,  1914, 
between  rail  and  other  carriers  and  water  carriers  not  traversing 
the  Panama  Canal  until  such  time  as  the  Commission  has  passed 
upon  the  application  relative  thereto,  provided  such  application 
is  filed  with  the  Commission  prior  to  July  1,  1914. 


April  23,  19 1 4. 

462.  CARRIER  MUST  INVESTIGATE  BEFORE  PAY- 
ING CLAIMS. — Upon  further  consideration  Conference  Ruling 
ij  is  modified  as  follows : 

A  carrier  can  not  shield  itself  from  responsibility  in  paying  a 
claim  by  accepting  the  authority  of  a  connecting  line  to  pay  it, 
but  must  ascertain  the  lawfulness  of  the  claim  and  allow  it  or 
not  upon  the  basis  of  its  own  investigation.  This  is  not  to  be 
understood,  however,  as  requiring  each  carrier  interested  in  the 
claim  to  make  an  independent  investigation.  The  principle  of 
direct  investigation  embodied  in  the  rules  of  the  freight  claim 
association,  whereby  the  carrier  against  which  a  claim  is  pre- 
sented undertakes  to  make  the  investigation  for  itself  and  for  the 
other  carriers  concerned  in  the  joint  movement  out  of  which  the 
claim  arises,  is  approved  by  the  Commission  as  a  means  of  ex- 
pediting the  adjustment  of  claims.  In  all  cases,  however,  the  in- 
vestigation so  made  must  be  thorough  and  must  disclose  a  lawful 
basis  for  payment  before  the  claim  is  adjusted.  (See  Rulings  68 
and  236.) 


May  ig,  19 14. 

463.  APPLICATION  OF  THE  AVERAGE  AGREE- 
MENT UNDER  UNIFORM  DEMURRAGE  RULES.— A 
storage  warehouse  company  which  is  specifically  designated  as 
the  consignee  of  carloads  of  miscellaneous  freight,  the  ])roperty 
of  others,  and  which  company  is  responsible  for  the  unloading 
and  for  the  detention  of  cars  so  received,  may  be  made  the  sub- 
ject of  the  average  demurrage  rule.  Cars  arriving  otherwise 
consigned  and  afterwards  ordered  to  the  warehouse  for  storage 


936  Confe;renck;  Rulings. 

may  not  be  included  under  the  average  agreement  with  the  ware- 
house company.     (See  Ruhng  409.) 


May  28,  19 1 4. 

464.  INTEREST  UPON  OVERCHARGE  CLAIMS.— 
Upon  further  consideration  Conference  Ruling  579  is  amended 
to  read  as  follows : 

It  is  the  view  of  the  Commission  that  in  the  settlement  of  an 
overcharge  claim  (by  which  is  meant  the  amount  collected  on  a 
shipment  in  excess  of  the  legally  published  rate)  the  claimant  is 
entitled  to  interest  thereon  at  the  rate  of '6  per  cent  per  annum 
from  the  date  of  the  improper  collection,  except  that  in  the  set- 
tlement of  an  overcharge  claim  involving  questions  of  weight  or 
classification  the  claimant  is  entitled  to  interest  thereon  from  the 
date  of  presentation  of  claim  to  carrier. 

The  Commission  does  not  regard  it  as  unlawful  for  a  claim- 
ant to  accept  in  satisfaction  of  his  claim  the  ascertained  amount 
of  an  overcharge  without  interest ;  and  the  Commission  is  of  the 
opinion  that  when  such  refund  is  made  by  the  carrier  within  30 
days  after  the  improper  collection  of  the  overcharge,  or  within 
30  days  after  the  presentation  of  claims  involving  questions  of 
weight  or  classification,  it  may  be  regarded,  in  accordance  with  a 
well-established  usage,  as  a  cash  transaction,  upon  which  inter- 
est does  not  accrue. 

The  views  expressed  in  this  ruling  shall  be  understood  as  ap- 
plying to  all  pending  and  unsettled  overcharge  claims  and  to 
those  arising  in  the  future,  but  not  as  authorizing  or  requiring 
the  reopening  of  any  claim  which  has  been  settled  and  closed  by 
the  acceptance  by  a  claimant  of  the  amount  of  an  overcharge 
without  interest. 


Conference  Rulings.  937 

Supplement   Xo.   2  to  Conference  Rulings  Bulletin   Xo.   G. 

Conference  Rulings  of  llie  Interstate  Commerce  Commission 

Issued  July  26,   1915. 


July  II,  IQ14. 

465.  ORDERS  ISSUED  ABROAD  FOR  DOMESTIC 
PASSENGER  TICKETS.— Under  an  arrangement  with  the 
rail  carriers  trans-Atlantic  steamship  lines  in  selling  a  ticket  for 
ocean  passage  from  a  foreign  port  will  also  sell  an  order  upon  a 
rail  line  for  transportation  from  the  port  of  arrival  to  an  inland 
point,  based  on  the  fare  in  force  at  the  time  the  order  is  issued. 
Upon  inquiry  as  to  whether  a  carrier  may  honor  such  an  order 
when  the  fare  has  been  changed  between  the  date  of  its  issue  and 
the  date  of  its  presentation :  Held,  That  the  order  may  be  hon- 
ored on  the  basis  of  the  fare  in  elTect  at  the  time  it  was  sold, 
provided  the  rail  carrier  has  published  an  appropriate  tariff  pro- 
vision for  the  acceptance  of  such  orders  at  the  fares  in  eft'ect  when 
they  were  issued. 


July  I/,  19 1 4. 

466.  PASSES  FOR  OFFICERS  AND  EMPLOYEES  OF 
TAP  LINES. — Lmder  the  recent  decision  of  the  Supreme  Court 
of  the  United  States  in  The  Tap  Line  Cases,  234  U.  S.,  L  it  is 
the  view  of  the  Commission  that  the  law  does  not  prohibit  the 
use  of  interstate  free  passes  by  the  officers  and  employees  of 
common-carrier  tap  lines  who  devote  substantially  all  their  time 
to  the  service  of  the  tap  line  and  where,  by  the  use  of  such  free 
passes,  no  unlawful  discriminations  are  affected.  (  See  Ruling 
208-a  and  The  Tap  Line  Case,  31  I.  C.  C,  494. ) 

July  2g,  19 14. 

467.  EXCURSION  TICKET  ISSUED  ON  DATE  NOT 
AUTHORIZED  BY  TARIFF.— A  station  agent  sold  a  colonist 
ticket  at  a  reduced  fare  before  the  commencement  of  the  period 
designated  in  the  tariff.  Upon  inquiry:  Held,  That  the  selling 
carrier  is  responsible  for  the  error  and  in  settlement  with  its  con- 


938  Confe:rexce  Rulixgs. 

nections  must  allow  them  their  usual  divisions  of  the  fare  law- 
fully in  effect  on  the  date  of  sak. 


December  2^,  1914- 

468.  EXPORT  AND  BIPORT  RATES— COXFEREXCE 
RULIXG  389  RESTATED. — In  order  to  avoid  controversies  and 
questions :  Held,  That  tariffs  hereafter  issued  containing  rates 
applicable  to  export  or  import  traffic  shall  specify,  by  inclusion  or 
exclusion,  the  countries  to  or  from  which  such  rates  are  appli- 
cable, whether  such  countries  are  or  are  not  adjacent  to  the 
United  States. 

In  the  interest  of  clearness  the  tariff's  should  also  specify 
whether  or  not  shipments  to  or  from  Cuba,  the  Philippine  Islands, 
Porto  Rico,  the  Hawaiian  Islands,  or  the  Canal  Zone  are  included. 
(See  Rulings  353  and  359.) 

469.  FREE  TRAXSPORTATIOX  OF  SUPPLIES  FOR 
LABORERS. — L'pon  inquiry  as  to  whether  or  not  a  carrier  may 
transport  without  charge  food  or  other  supplies  for  the  use  of 
laborers  employed  on  its  line :  Held,  That  such  shipments  may 
not  be  carried  free  except  when  shipped  by  an  agent  of  the  car- 
rier acting  for  it  and  for  whose  actions  the  carrier  assumes  and 
accepts  responsibility. 


December  24,  1914. 

470.  SPECIAL  RATES  OX  SHIP^IEXTS  IX  FOREIGX 
CARS. — A  carrier  may  not  by  tariff"  limit  the  application  of  cer- 
tain proportional  rates  to  shipments  in  cars  of  other  carriers. 


January  ip,  19 13. 

471!  CHAXGES  IX  RECOXSIGXMEXT  CHARGES.— At 
the  time  a  shipment  commenced  to  move  from  the  point  of  origin 
the  tariff'  provided  four  days  free  time  for  reconsignment,  but 
before  the  shipment  reached  the  reconsigning  point  the  time  had 
been  lawfully  reduced  to  one  day :  Held,  That  the  tariff'  in  effect 
when  the  shipment  was  made  applied. 


Max  3,1915. 

472.  WAIVER  OF  UXDERCHARGES.— On  and  after  Au- 
gust 1,  1915,  the  Commission  will  not  consider  on  the  informal 


Conference  Rulings.  939 

docket  any  application  for  authority  to  waive  collection  of  under- 
charges in  connection  with  shipments  delivered  subsequent  to 
July  31,  1915.  Conference  Rulings  2j8  and  432  are  hereby  res- 
cinded as  of  August  1,  1915. 

May  24,  IQ13. 

473.  DEMURRAGE  AND  STORAGE  RL'LES.— Upon  in- 
c|uiry  and  to  remove  the  confusion  that  exists  among  carriers  and 
shippers  it  is  Held,  That  demurrage  and  storage  in  transit  are 
controlled  by  the  tariff  in  eft'ect  when  the  initial  movement  be- 
gins ;  that  demurrage  on  outbound  shipments  is  controlled  by  the 
tariff  in  effect  when  the  car  is  actually  set  for  loading;  that  de- 
murrage and  track  storage  at  destination  are  controlled  by  the 
tariff'  in  effect  when  the  car  is  actually  or  constructively  set  for 
unloading ;  and  that  offtrack  storage  by  a  carrier  at  destination, 
in  its  warehouse  or  otherwise,  is  controlled  by  the  tariff'  in  effect 
at  the  time  such  storage  begins. 


May  2j,  19 1 3. 

474.  ADJUSTMENT  OF  CLAIMS  FOR  DAAL\GES  RE- 
SULTING FROM  MISROUTING.— Con/^r^wc^  Rulings  2S6 
(d )  and  286  (/)  are  amended  to  read  as  follows: 

(a)  It  is  the  duty  of  a  carrier  to  make  delivery  in  accordance 
with  routing  directions.  Where  such  routing  instructions  have 
not  been  followed  and  delivery  is  tendered  at  another  terminal 
than  that  designated,  it  remains  the  duty  of  the  delivering  carrier 
to  make  delivery  at  the  terminal  designated  in  routing  instruc- 
tions, either  by  a  switch  movement  or  by  carting.  In  either  event 
the  additional  expense  involved  in  making  such  delivery  must 
be  borne  entirely  by  the  carrier  responsible  for  the  misrouting 
and  the  reimbursement  thereof  to  the  delivering  carrier  may  be 
made  by  the  carrier  at  fault  without  a  specific  order  of  the  Com- 
mission.    (  See  Ruling  214-rf. ) 

(b)  In  case  the  carrier  is  unable  to  deliver  the  shipment  with- 
out unreasonable  delay  at  the  terminal  designated,  and  the  con- 
signee elects  to  accept  the  shipment  at  the  terminal  where  delivery 
has  been  erroneously  offered,  the  shipper  or  consignee  is  entitled 
to  recover  damages  in  the  sum  of  the  diff'erence  between  the  ex- 
pense of  drayage  actually  incurred  at  a  reasonable  charge  there- 
for and  the  expense  which  would  have  been  incurred  if  proper 
delivery  had   been   effected.     Carriers   admitting   the   justice   of 


940  Conference  Rulings. 

claims  of  this  character  should  file  an  application  with  the  Com- 
mission for  authority  to  pay  same ;  each  application  to  admit  re- 
sponsibility for  the  misrouting  and  be  supported  by  affidavit  of 
the  agent  of  the  carrier  cognizant  of  the  facts  relied  upon  to  jus- 
tify the  payment.  (Affirming  and  modifying  Rulings  234,  283,' 
and  392.  See  Sierling  v.  M.  C.  R.  R.  Co.,  21  I.  C.  C,  454,  and 
Maxcy  v.  B.  &  O.  S.  W.  R.  R.  Co.,  26  I.  C.  C,  507. ) 

[c)  The  obligation  lawfully  rests  upon  the  carrier's  agent  to 
refrain  from  executing  a  bill  of  lading  which  contains  provisions 
that  can  not  lawfully  be  complied  with,  or  provisions  which  are 
contradictory  and  therefore  impossible  of  execution.  When, 
therefore,  the  rate  and  the  route  are  both  given  by  the  shipper 
in  the  shipping  instructions  and  the  rate  given  does  not  apply 
via  the  route  designated,  it  is  the  duty  of  the  carrier's  agent  to 
ascertain  from  the  shipper  whether  the  rate  or  the  route  given 
in  the  shipping  instructions  shall  be  followed.  The  carrier  will 
be  held  responsible  for  any  damages  which  may  result  from  the 
failure  of  its  agent  to  follow  this  course. 

If,  however,  the  agent  of  the  carrier,  after  exercising  reason- 
able diligence,  is  unable  to  obtain  more  definite  instructions  as 
to  routing,  the  goods  should  be  sent  via  the  route  specified  in  the 
bill  of  lading.  (Cancels  Rulings  159,  186,  192-214-?,  and  231 ;  see 
Rulings  243,  370,  and  397.  See  Gibson  Fruit  Co.  v.  C.  &  N.  W. 
R\.  Co.,  21  I.  C.  C,  645,  and  American  Agricultural  Chemical 
Co.  V.  B.  &  A.  R.  R.  Co.,  28  I.  C.  C,  400.) 

475.  PASSES  TO  OFFICERS  AND  EMPLOYEES  OF 
OCEAN  AND  FOREIGN  COMMON  CARRIERS.— In  view 
of  the  decision  in  The  United  States  v.  Erie  Railroad  Company, 
236  U.  S.,  259,  so  much  of  Conference  Rulings  95  (a),  93  (g), 
and  ip6  as  pertains  to  passes  to  officers  and  employees  of  ocean 
common  carriers  and  of  rail  common  carriers  in  foreign  countries 
not  adjacent  is  hereby  withdrawn. 


June  2,  19 1 5. 

476.  PASSES  TO  THE  FAMILY  OF  A  DECEASED 
PENSIONED  EMPLOYEE.— Upon  inquiry  as  to  whether  cr 
not  common  carriers  may  grant  free  transportation  to  the  members 
of  the  family  of  a  deceased  pensioned  employee:  Held,  That, 
with  the  exception  of  widows  during  widowhood  and  minor  chil- 
dren during  minority,  the  members  of  the  family  of  a  deceased 
pensioned  employee  may  not  lawfully  use  free  passes. 


Conference;  Rulings.  941 

June  14,  iQij. 

^11.  FREE  TRANSPORTATION  OF  CAR  WITH  EX- 
HIBITS FOR  STATE  AGRICULTURAL  COLLEGE.— A 
state  college  uses  a  car  containing  live  stock  and  agricultural 
products  in  giving  free  educational  lectures  and  demonstrations 
to  farmers  in  dififerent  parts  of  the  state.  L'pon  inquiry:  Held, 
That  if  the  college  is  sustained  by  the  state  and  if  the  arrange- 
ments are  made  with  the  proper  and  responsible  officers  of  the 
state  such  car  and  contents  and  the  necessary  agents  employed 
in  connection  therewith  may  lawfully  be  moved  by  carrier  with- 
out charge  or  at  reduced  rates.     (  See  Ruling  398. ) 

July  8,  19 1 5. 

478.  PASSES  TO  WATCH  AND  TBIE  INSPECTORS.— 
Upon  inquiry :  Held,  That  free  passes  may  not  lawfully  be 
used  by  watch  and  time  inspectors  who,  while  engaged  in  the 
performance  of  a  service  for  a  carrier,  pursue  other  business  or 
sell  or  solicit  the  sale  of  merchandise  of  any  character  either  to 
the  employees  of  the  carrier  or  to  the  general  public.  (  See  Ruling 
208-&.) 

July  22,  19 1 5. 

479.  PASSES  TO  EMPLOYEES  OF  PRIVATE  CAR 
LINES. — A  company  owns  and  leases  cars  to  railroad  companies 
on  a  mileage  basis  and  ices  and  re-ices  such  cars  at  various  points 
on  the  carriers'  lines  at  the  expense  of  the  carrier.  Inasmuch  as 
the  furnishing  of  cars  and  the  icing  of  cars  are  duties  imposed 
upon  carriers  under  section  1  of  the  act,  and  following  the  prin- 
ciple laid  down  in  Conference  Ruling  208  (b),  it  is,  Held,  That 
passes  may  lawfully  be  issued  to  the  officers  and  employees  of 
the  car  company  when  traveling  solely  for  the  purpose  of  fur- 
nishing or  icing  cars  for  shipment  over  the  carrier's  own  lines, 
but  may  not  lawfully  be  issued  to  or  used  by  the  officers  of  the 
car  company  when  not  traveling  in  the  performance  of  a  bona 
fide  service  for  the  carrier. 

July  22,  191 5. 

480.  TELEPHONE  MESSAGES  RELATING  TO  SHIP- 
MENTS.— Upon  inquiry:    Held,  That  Conference  Rulings,  302, 


942  Conference  Rulings. 

S^7>  35^>  ^^1^  3*^3'  regarding  the  exchange  of  messages  between 
carriers  and  shippers,  relate  to  telephone  messages  as  well  as  to 
telegrams. 


July  2^,  1913. 

481.  ERROR  IX  THE  ISSUAXXE  OF  PASSENGER 
TICKETS. — The  agent  of  an  initial  carrier  issnes  half-rate  or 
lower-class  tickets  and  properly  punches  the  contract  portion  and 
some  of  the  coupons  but  fails  to  punch  the  other  coupons :  Held, 
That  Conference  Ruling  ^77  applies,  and  that  the  initial  carrier 
should  settle  with  the  lines  lifting  the  unpunched  coupons  on  the 
basis  of  the  fares  applicable  to  the  class  of  transportation  indi- 
cated thereon. 


July  26,  19 If,. . 

482.  ROUTING  OF  SHIPMENTS  BY  CONSIGNEES.— 

While  the  Commission  adheres  to  the  views  heretofore  expressed 
in  Conference  Rulings  ^^2  and  43,^:  Held,  That,  under  proper 
tariff  ]3rovision  therefor,  carriers  may  observe  routing,  diversion, 
or  reconsignment  instructions  furnished  in  writing  by  the  con- 
signee where  the  consignor  and  the  consignee  are  identical,  or 
where  the  shipment  is  made  by  the  consignor  as  the  authorized 
agent  for  that  purpose  of  the  consignee.  Billing  in  such  cases 
must  show  that  the  consignee  is  in  fact  the  shipper  or  that  the 
consignor  named  therein  makes  the  shipment  as  authorized  agent 
for  that  purpose  of  the  consignee. 


Index  to  Conference  Rulings. 


ABSORPTION  OF  SWITCHING  CHARGES:  Ruling, 

carrier  to  pay  terminal  line  for  switching  and  not  leave  it  to 

consignee    64 

on  competitive  traffic  only;  application  of  fourth   section..  30id 
on  inbound  cars,  accrued  claim  not  invalidated  by  cancella- 
tion   of    tariff 13G 

Accident,  unavoidable,  exception  in  hours  of  service  law 88 

Accounts  of  telegraph  and  telephone  companies  subject  to  act..  305(? 

Accrual  of  cause  of  action 220; 

Address  : 

consignee's,  omitted  from  routing  instructions 383 

failure  to  send  notice  of  arrival  to  named 366 

Adjacent  foreign  country  : 

Canadian  local  rate  not  legally  applicable  unless  filed   with 

Commission     256 

car-service   charges   to   and   from   Canada 191 

divisions  of  rates  to  and  from  Mexico  must  be  published..  269 

municipal  governments  in,  no  free  transportation 118 

one  or  more  points  in;  long  and  short  haul 318 

overcharge    on    shipment    to    Mexico 126 

shipments  to,  export  business 353 

transportation   to,   from   nonadjacent   foreign   country 294 

Admission,  by  erring  road  of  responsibility  for  misrouting, 

198,  214d,  214/ 

Advance   charges,   to   boats   that   are   not   common   carriers,   un- 
lawful     , 62 

on  import  traffic    428 

customhouse    brokerage    fees 444 

Advance  of  rate: 

while  import  shipment  on  seas Ill 

discretionary  with  Commission  whether  to  suspend 322 

request  for  suspension  of;  what  must  be  shown 323 

Advertising,  State  mileage  book  exchanged  for;  interstate  journey.  315 

Agent  (see  also  Employees)  : 

awaiting  authority  to  accept  check   for  charges,  demurrage 

accrued    39 

carriers',  acting  as  forwarding  agent  for  shipper 98,  337,  365 

disciplinary   matters   between   carrier   and   its   agents,   Com- 
mission will   not   intervene 69,    105 

error   of,    in    not   limiting    ticket 69,    277 

joint,  error  in  misrouting  shipment 253 

land  and  immigration,  passes  to,  if  bona  fide  employees....  208a 
"necessary   agents"   in   free   transportation    for   Government 

or   charity    150 

943 


944  Index  to  Conference  Rulings. 

Agknt — C  on  ti  lined.  Ruling. 

posting  name   of,   at   l)lind   sidings 289 

relief  of,  does  not  relieve  carrier  from  collecting  undercharges.  151 

shipper's;  binds  principal  when  declaring  valuation 188 

tariffs  filed  In'  tariff  agent,  conflict  with  carrier's  own  tariffs, 

50,  104 
Agreements  : 

between  carriers  respecting  responsibility  for  routing  traffic.  198 
between  carriers  for  division  of  joint  rates  or  fares  must  be 

filed    209 

between  carrier  and  shipper  respecting  delivery;   no  refund 

of    drayage    235 

between  carrier  and  shipper,  respecting  prepaj-ment  to  non- 
agency  stations   20 

Allowances  : 

floor  racks  in  refrigerator  cars  furnished  by  shippers 292 

grain  doors,  maximum  per  door  and  per  car  must  be  pub- 
lished    ..., 78,     132,  267 

must    be    published    and    nondiscriminatory 360 

to  shipper  for  fitting  cars,  must  be  in  tariff 19,  78,  132,  292 

All-rail  route  : 

all-rail    route    defined    316 

car-ferry  route  included  in  term  "all-rail" 316 

duty  of  carrier  to  forward  by,  in  absence  of  instructions, 

190,  21-ib,    284,  316 
Amendment   to   tariff.    See   Supplements    to   tariffs;  Tariffs. 
American  Association  of  Railroad  Superintendents,  free  trans- 
portation      371 

American  Railway  Association,  household  goods  of  inspectors.  335 

Applications  for  passes  must  show  sex  of  children 290 

Applications  on   special  docket,   signatures   to 129 

Argument,  oral,  practice  rule  concerning 149 

Argument,  oral,  notices  of 408 

Akmy,   transportation   of,   under   orders 218 

Army  and  Navy,  no  free  transportation  to  officers  of 20Sd 

Assignment  of  reparation   claim 362 

Association,  commercial,  no  free  excursion  by  carrier 272 

Astray  shipments: 

accepted  by  consignee  at  point  found,  adjustment  of  demur- 
rage      31 

return    of    217 

switched  in  error;  right  of  switching  line  to  charges 240 

Attorney,  local,   not  regularly   employed,   family  of 95a 

Attorneys,  passes   for 412,  426 

Automobile  cars,  safety  appliances 329 

Baggage  : 

checked  by  initial  line  with  routing  inadequateh^  specified..  326 

checking  sample   baggage    445 


Index  to  Conference  Rulings.  945 

Baggage — Continued.  Ruling. 

sale   of   property   checked   as 455 

storage  on,  refunded  to  passenger  injured  in  wreck 61 

Baggage  express  companies,  passes  only  to  baggage  agents. ..  .95,  216 

Baggagemen  on  trains  subject  to  hours  of  service  law 275 

Ballast  cars,   safety   appliances 329 

Barred  claims.     Sec  Limitations. 

Bees  in  hives,   passes   to   caretakers " 112 

Belt  line,  municipal,  subject  to  act 89 

Bill  of  lading   (sec  also  Uniform  bill  of  lading)  : 

date  of  issuance  not  necessarily  determinative  of  applicable 

rate     172 

exchange,  route,  and  origin  should  be  shown 227 

loss  of  transit  privilege  through  error  in 348 

naming   combination   rate,   higher  joint   rate  by   one   route; 

misrouting     231 

naming  route,  and  rate  applicable  over  different  route;  mis- 
routing    159,    186,    192,    214,    243,  286 

rules   and   regulations   governing   export 378 

signature  to  released  valuation   clause 226 

through,  over  rail  and  water  line,  no  joint  rate 354 

uniform;   measure  of  damages;  value  of  lost  goods 387 

Bills  of  lading,   exchange   of 415 

Blind  sidings,   posting  name   of  agent   at 289 

Blockade.     See  Diversion. 

Boat  line.     See  Water  lines. 

Body  of  deceased  person.     Sec  Corj^se- 

Boiler  compound,  pass  to  instructor  in  use  of 320,  336 

Bonds  : 

to  secure  repayment  of  claims  paid  on  presentation 68,  236 

valuation   of,  when  shipped  by  express 58 

Books  of  Railway  Y.  M.  C.  A.  library,  free  transportation 330 

Box  CARS,   safety   appliances 329 

Branch  line  stations,  rates  from,  not  directly  intermediate....     304/ 
Breaking   bulk,    stopping    cars    for   part   unloading,   legal    when 

under    tariffs    233 

Bridge  company: 

nonoperating,   no   passes   to   officers   and   employees 263 

when   not   subject  to   the   act 381 

Bridge  companies,  reports  by .'iDO 

Briefs,   practice  rules   regarding  preparation  and   filing 40,  140 

Brokerage  charges  need  not  be  published  by  express  companies.  300 
Bunching  cars,   demurrage   charges   resulting   from   owner's   in- 
ability to  unload  142 

Bureau  of  carriers,  pass  to  employee  of 371 

Bureau    for    safe    transportation    of    explosives,    goods  of  in- 
spector      335 

Bus.     See  Transfer  company. 


946  Index  to  Conference  Rulings. 

Canada   {see  also  Adjacent  foreign  countries)  :  Ruling. 

Canadian  customs  and  immigration  inspectors,  passes 345 

car-service   charges   to   and   from 191 

fares  for  immigrants  between  points  in,  no  jurisdiction....  24 

local   Canadian  rate  not  legally  applicable  unless  filed  with 

Commission     256 

misquotation  of  rate  to,  undercharge  must  be  collected....        262 
Canal  boat  line,   subject   to  act  when   operating  in   connection 

with    rail   line 241 

Canal  Zone,  tariffs  containing  export  rates 3S9 

Cancellation  of  tariff  : 

must  be  specific  and  complete 101 

no  bar  to  accrued  claim  for  absorption  of  switching  charges.       136 

reissue   of    canceled    ratg 344 

tariffs  and  rates   remain   in   effect   until   specifically   canceled. 

50,   70,   104 
Car  and  party  : 

passes,    unlawful    in    form 95; 

private,    diverted    account    blockade,    entitled    to    short-line 

mileage   rate    138 

Caretakers: 

accompanying  gasoline  motor  car  moving  under  own  power.       334 
accompanying  fruit  by  express,   free   transportation  in   pas- 
senger   cars    1~9 

accompanying  property  transported  for  Government;  to  ex- 
positions; persons  or  propertj^  transported  for  charity....        150 

bees   in   hives,   passes    to 112 

going  on  passes  intending  to   return  with   fruit 1 

milk,  no   free  transportation 21 

passes  only  for  trip  or  round  trip,  not  annual ' 37 

refrigeration    included   in    rates,    no   passes    to   shippers    ac- 
companying freight    171 

return  to  point  of  origin  only  over  original  route 189 

Car  ferries  : 

car-ferry   route,   defined    316 

car-ferry  route  included   in   term  "all-rail" 316 

'  car  ferry  connecting  two  interstate  rail  lines  by  which  it  is 

owned    374 

hours-of-service    law    applicable 108 

route  equivalent  to  all  rail 284 

Car  fitting,  refund,  or  allowance  to  shipper  for,  if  in  tarif?, 

19.    7S,    132,    292 

Car  lighting  company,  passes  to  inspectors,  unlawful 169 

Carload  r.a,te,  not  applicable  where  shipments  delivered  in  sep- 
arate  less-than-carload   lots    175 

Carlo.\d  weight.     See  jNIinimum  weight. 
Carriers  : 

boats   that   are   not    common    carriers    may    not   receive   ad- 
vances      62 


Index  to  Conferexce  Rulings.  947 

Carriers — Continued.  Ruling. 

erring,  liable   for   misrouting 137,   199,   286 

lessee   roads   not   serving  public  as   common  carrier,  tariffs.       180 
liable  for  demurrage  and  storage;   failed  to  forward   notice 

of   consignee    366 

located   wholly   within   a   state 197,   368 

misrouting  of  shipment  of  railroad   supplies 143 

participating     in     interstate     transportation     without    legal 

rates  ;  prosecution   184,  194 

passes    to    employees 95 

payment  for  telegrams  to  or  from  shippers 302 

railroads   carrying   interstate   traffic    for   express    companies 

subject  to  act    197,   368 

reporting  separately  may  not  transport  free  for  one  another, 

9,  225 
statute  of  limitations  nonoperative  as  between  carriers....  306 
trackage  rights  by  one   railroad  over  another,   as   device   to 

avoid    charges    153 

Cars: 

allowances  to  shippers  for  grain  doors,  etc 19,  78,  132,  292 

bunched  in  transit,  demurrage  resulting  from 142 

carload  shipment  transferred  in  transit  into  two  cars 357 

demurrage  on  construction  cars  and  derricks  used  by  con- 
tractors             270 

duty  of  carriers  in  through  route  to  furnish  through  cars  or 

transfer   free   59 

large  car  loaded,   transferred   by   carrier  to  two  small   cars.       273 
larger  car  furnished  than  ordered;  connecting  lines  without 

tariff    for    lower    minimum 274 

leased,   when  are  private 795,   122,   128 

private,   defined,   in   connection   with   demurrage, 

796,    122,   128,   222 

private,  diverted,  short-line  mileage   rate  applies 138 

private,  out  of  service  on  carrier's  storage  track,  demurrage.       123 
rate  applying  only  on  coal   in   box  cars;   carrier  furnishing 

hopper  cars  liable  for  excess  charges 120 

repair    of,    on    foreign    lines 333,    373 

safety    appliances    required    on 67 

sleeping  cars,  privilege  of  occupying  at  destination 51 

transfer  of  shipment  to  another  car  in  transit 331 

two  small  cars  furnished  in  lieu  of  car  ordered 339 

Cars  of  special  construction,   what   included 328,   329 

Car  service.    See  Demurrage. 

Casualties,  exception  in  hours-of-service  law 88,  287; 

Cause  of  action,  when  accrues 220/ 

Cement,  rule  permitting  substitution  of,   for  lime,  unlawful....        181 

Change  in  rate,  while  import  shipment  on  seas Ill 

Charges  {see  also  Rates)  : 

brokerage,  need  not  be  published  by  express  companies....        300 


948  Index  to  Confi<:re:nce  Rulinxs. 

Charges — Continued.                                                                                     Ruling, 
delivering  carrier  must  collect  undercharge  on  prepaid  ship- 
ments             156 

for   transportation   services   must   be   paid   in   money 207 

outbound,  can  not  be  refunded  to  consignee  and  billed  as  ad- 
vances  on   return   movement    249 

proceeds   of   sale    for    charges    insufficient    to    cover    freight 

and    demurrage    41,    145 

telegraph  and  telephone,  must  be  fair  and  reasonable 305 

telegrams   to   or   from   shippers 302 

Charity  : 

passes   to  caretakers  with  persons  or  property   carried  free 

for    charity    150 

reduced    rates    to,   without   tariffs 20Se 

Charter,    train   at   published   rate   per   car   or   per  train,    tickets 

sold  by  charterer  at  special   fare 82 

Check,  agent  awaiting  authority  to  accept  for  freight  charges; 

demurrage    39 

Checking  baggage,  ■  by    initial    line   with     routing     inadequately 

specified    326 

Chied    (see  also   Family)  : 

commutation  tickets  for,  must  not  discriminate  in  favor  of 

school    children    99 

sex  of,  must  be  shown  on  application   for  passes 290 

under  13  years,  full-fare  ticket  purchased,  no  refund 163 

Chinese,  fares  for  deportation  of,  by   Government 107 

Circulars  and  rulings  of  Commission  distributed  to  carriers...        211 
Claims  : 

accrued,    for    absorption    of    switching    charges,    not    invali- 
dated  by   cancellation   of   tariflf 136 

assignment    of    362 

bureaus    filing    reparation    complaints,    orders    in    favor    of 

shipper    246 

carrier  must  investigate  before  paying 15,   68,   236 

carriers  must  investigate    462 

interest   on    464 

misrouting,   adjustment   of,   under   Ruling  214 192 

misrouting,  barred  before   Commission  by  statute;  jurisdic- 
tion of  courts 139,   286a 

misrouting;    principles   fixing   liability   and   governing   claim 

adjustments 159,    186,    192,    205,   214,    286 

overcharge,  on  one  shipment  set  off  undercharge  on  another, 

48,    133 
overcharge,   shipper   may   not   deduct    from   charges   on   an- 
other  shipment    48 

presentation    of    456 

Classification,  does  not  govern  tariff  unless  referred  to 141 

Class  rates.     See  Rates;  Commodity  rates. 
Cleaning  in  transit.     See  Transit  privileges. 


Index  to  Confere;nce  Rulings.  949 

Coal  cars.    See  Cars.  Ruling. 

Coal  for  steam  purposes  may  not  be  given  special  rate 34 

CoASTWisiv    BUSINESS,    defined S.").'? 

Coastwise  traffic  over  Panama  Railroad 369 

Collection  of  charges.     See  Charges;   Payment. 

Collection  of  demurrage.     See  Demurrage. 

Collection   of    shipments    by    carrier   and    free    switching    from 

industries    97 

Collection  of  undercharges.     See  Underch.\rges. 

Colon,  Panama,  shipments  to  ;  export  rates 339 

Colonist  tickets.     See  Tickets. 

Combination  rates  (see  Rates;  Fares),  of  intermediate  rates  or 

fares    less    than    through    rates    or    fares 220^,    298 

Commercial    association    not    entitled  to    excursion  at  carrier's 

expense  272 

Commissary  car  operated  by  carrier,  unlawful 257 

Commission  : 

correspondence  with,  if  quoted,  must  be  fully  and  accurately.  29 
correspondence    with,    conducted    through    designated    offi- 
cers   of    carriers 210 

official  circulars  and  rulings;  distribution  of 211 

Commission  for  tr.-knsportation,  use  of,  by  post-office  inspectors 

off    duty     377 

Commissioners  of  states,  not  to  use  passes  on  interstate  journeys.  35 

Commissions  : 

import    traffic,    to    consignees,    not    sanctioned 7 

on  traffic,  equivalent  to  rebates,  illegal 221a 

Commodity  rates  : 

may  not  be  applied  to  transportation  of  passengers 212 

supersedeas  class  rates,  although  carrying  higher  minimum 

weight    84 

trade  name,  rates   on   articles   sold  under 279 

Common   arrangement,   though   billing  over   rail-and-water  line.  334 

Common  point,  rates  on  point  making  lowest   combination....  215 

Commutation  fares  and  tickets  : 

application  of  fourth  section  of  amended  act 304a 

compared   only  with   tickets   of   same   character   under   sec- 
tion  4    310 

exception  as  to  tariffs  in  section  22  not  applicable  to 208^ 

must  not  be  discriminatory  limited  to  school  children 99 

state,  may  be  used  on  interstate  journey 20 

Company  material  : 

demurrage    313 

destroyed  on   foreign   line,  return  free   to   road   owning 224 

division  of  joint  rate   on   fuel   coal 324 

free   carriage   returning  to   manufacturers   for   repairs 22 

free   transportation   by   one   carrier   for   another 9,  225 

giving  express  company  benefit  of  rail  carrier's  division....  372 

handled   over   another   line   under   traffic   rights 439 


950  Index  to  Conference  Rulings. 

Company  material — Coiuiiiucd.  Ruling, 

lease  by  carrier  of  trackage  rights  over  another,  as  device 

to    avoid    charges 153 

misrouting    of    143 

regulations   concerning  explosives  apply  to 388 

repair    of    car,    free    transportation 333 

repair    of    cars    on    foreign    lines 373 

Competency  of  railroad  employees  not  inquired  into  by  Commis- 
sion         288 

Complaints,  formal,  involving  same  issue  should  be  consolidated.       206 

Complaints  for  reparation.     See  Claims;   Reparation. 

Concentration.     See  Transit  privileges. 

Concession  ;    unpublished    allowance 360 

Concurrence : 

agent   files   tariff,   nonconcurring   carrier,   refiles   as   its   own 

without   securing   concurrences,    unlawful 13 

by  carrier  in   tariffs  of  another  does   not  legalize   local  use 

of    local    rates    281 

by    switching    roads 341 

error   in    stating    concurrence    number 347 

in  tariffs  for  through  traffic  by  leased  lines  jointly  operated 

through    separate    company    229 

Conductor,  error  of,   in  honoring  void   ticket 105 

Conflict  in  tariffs,   rates,  or  fares 50,  70,  104,  239 

Connecting  carrier: 

discriminating  in  division  of  rate  on  fuel  coal 324 

liability   of,    for    misrouting 137,    199,    286c 

two  small  cars  furnished  in  lieu  of  car  ordered 339 

Consignee  : 

commissions    to,    on    imports,    not    sanctioned 7 

disclosing   name   of    356 

f.   o.   b.   shipment,   liability   for   demurrage 96 

omitting    the    address    of 383 

reconsignment   includes   changes   of,  at  same   destination...  72 

undercharges    must    be    collected    from 3,    187 

unknown  at  destination,  notice  of  arrival  of  car  mailed,  de- 
murrage   accrues    144 

Consignor  : 

error    of,     in    loading    car;     shipment     recalled    in    transit: 

charges   for   actual   haul 248 

error  of,  in  wrongly  billing  destination,  refund  of  additional 

charges   upon   unauthorized    reconsignment 237 

f.  o.  b.  shipment,  liability  for  demurrage 96 

mus't  pay  lawful  charges  on  shipment  billed  as  prepaid....  20 

Construction,    private    side    track,    by    shipper,    cost    repaid    by 

carrier     110 

Construction  cars.    See  Cars. 

Contracts  : 

for  division   of  joint  rates  or  fares  must  be   filed 209 


Index  to  Confe;rence  Rulings.  951 

Contracts — Continued.                                                                             Ruling, 
free  transportation  of  materials  and  men  for  icing  plant...        124 
free  transportation  of  material  for  contractors  under  agree- 
ment   therefor    208c 

pass  to  officers  of  nonoperating  road 355 

pass  to  instructor  in  use  of  appliances  and  material ..  320,  336,  346 

solicitors   for  excursion,   form   of  contract  with 221c 

tailor  under  contract  making  uniforms  for  railway  employ- 
ees, passes  to   134 

telephone  and  telegraph  service  carriers  must  file  contracts 

for    219 

Contribution,  refund  by  carrier  whose  agent  made  mistake....       390 

Cooks  may  be  carried  free  on  private  cars 301 

Corpse : 

death  of  round-trip  ticket  holder  before  return   trip   made; 

refund    393 

deceased  wife  of  employee,   free  transportation   to  place   of 

interment    174 

employee  killed  or  died  in  service,  free  transportation  of, 

18,   173,   193 

ex-employees,   no  free   transportation 285 

Correspondence  : 

with  Commission,  if  quoted,  must  be  fully  and  accurately..         29 
with  Commission,  conducted  through  designated  officers  of 

carriers    210 

Correspondence'  school,  agents  of,  not  entitled  to  passes 20Sa 

County    authorities,    transportation    free    or    at    reduced    rate, 

lawful 311 

Coupon  for  water  transportation  exchangeable  for  rail  transpor- 
tation           391 

Courts,  jurisdiction  in  misrouting  claims  that  are  barred  before 

Commission     2S6a 

Credentials  of  examiners  must  be  honored  without  special  let- 
ters  of   advice    260 

CrEOSOTing  lumber,  transit  privilege  of  eighteen  months  not  ex- 
cessive             232 

Cuba,  tariffs   containing  export   rates 389 

Customs  brokers,  acting  as  consignees,  no  commissions  on  im- 
ports      7 

Customs  clearance,   brokerage   charges   for,   need   not   be   pul)- 

lished   300 

Customs  inspectors,   Canadian,   passes 345 

Damages  : 

error  in  transmission  of  telegraphic  message,  no  jurisdiction.       317 

measure  of;  under  uniform  bill  of  lading 3S7 

refusal   of   shipper   to   pay   ice    charges 343 

resulting  from  delayed  notice  of  arrival  of  fruit  at  destina- 
tion         127 


952  Index  to  Confi<;re;xce  Rulings. 

Ruling. 
Dangerous  articles,   regulations   concerning,   apply  to   company 

material    388 

Date  effective.    See  Effective  date  of  tariffs. 

Deadheading  employees  not  on  duty  under  hours-of-service  law.         74 

Deceased  employees.     See  Employees  ;  Corpse. 

Declared  valuation.     See  Valuation. 

Delay  : 

damages  resulting  from  delayed  notice  of  arrival  of  perish- 
able  freight   127 

of   vessel;    no   waiver   of   demurrage 358 

trains,   causing  passenger  to   miss   connections,   invalidating 

ticket     27 

Delivering  carrier: 

must  collect  demurrage  although  another  carrier  at  fault.. 32.  220/ 
must   collect   undercharges   even   on    prepaid    shipment ....  16,    156 

must   investigate   claims   before   paying 15 

Delivery  : 

prevented  by  local  law,  prepaid  charges  not  to  be  refunded.       367 

shipper's   instructions  must  be   followed 214fc 

wrong   terminal,    resulting   from   misrouting,    no    refund    for 

drayage    25,  234,  283,  286d,  392. 

Demurrage   {see  important  note   to  Ruling  242) : 

accruing  while   agent   awaits   authority  to  accept  check   for 

charges    39 

accruing    on    "order    notify"    shipments    through    failure    to 

notify,   such   shipments   being   prohibited   by   tariffs 261 

astray   shipment  accepted  by  consignee   at  point   found....  31 

accruing    at    point    of    origin 416 

average  demurrage  agreement    409,  463 

bunching   cars   in   transit 142 

Canada,   on   traffic   to   and   from,   terminal   charges   must   be 

published    191 

change    in   rules    during   time    shipments    are    held 405 

collected  under   tariff  not  filed,   refund   denied 194 

collection    of     313 

company    material    313 

construction   cars  and  derricks  on  storage  tracks 270 

delivering    carrier    must    collect    on    misrouted    shipments; 

consignee  should  accept  delivery  and  pay  charges 32,  220/ 

due    to    vessel    delay;    no    waiver 35S 

empty    cars,    Uniform    Demurrage    Code 313 

failure  to  give  notice  at  named  address 366 

f.  o.  b.   shipments,  at  point  or  origin,  against  consignor  or 

consignee     96 

free  time  allowance  under  Uniform  Code,  half  holidays....        313 

high-water   exemption   313 

jurisdiction    of    Commission    exclusive    over    demurrage    on 

interstate  traffic 54,   2236 


Index  to  Conference  Rueings.  953 

Demurrage — Continued.  Ruling. 

live   stock;    poultry   not   included 313 

misrouting   carrier   liable   for 383 

must  be  published  when  applied  on  interstate  shipments...      223a 

notice    of   placement    313 

occasioned   by   strike,    no    refund 8 

on   damaged   shipments    451 

private  cars  on  private  sidetracks 79,  121,  128,  222,  313 

private  car,  out  of  service,  on  carrier's  storage  track 123 

private    cars    under   Uniform    Code 313 

proceeds  of  sale  insufficient  to  cover  transportation  and  de- 
murrage   charges     41 

published    in    separate    tarifif   of   originating   carrier   without 

cross  reference  in   rate   tariflf 276 

sidetrack  on  marshy  land  sank  with  cars,  demurrage  waived.  117 

snowdrifts,  exemption  on  account   of 313 

tariffs  used  before  August  28.  1906,  but  not  filed  by  carriers 

until    later    100 

terminal    line    refused    to    accept   and    switch   until    freight 

charges  paid,   demurrage   accrues 144 

transferred  from  one  to  two  cars  in  transit,   demurrage  on 

one    250,    357 

Uniform    Code    indorsed    by    commission 242 

Uniform    Code,    Rules    1,    2,    3,    4,    7,    and    8    explained 313 

waiver    where    proceeds    of    sale    insufficient    to    cover    all 

charges     145 

weather  or  floods  preventing  unloading,  tariff  rule  waiving, 

135,   22:^<: 

where  two  small  cars  are  furnished  in  lieu  of  car  ordered..  339 

Deportation  of  Chinese  for   Government,  no   reduced  fares....  107 

Destination  : 

erroneously  billed  by  shipper,  carrier  should  secure  disposi- 
tion  orders    237 

reconsignment  includes   changes   in 72c 

Destruction  : 

of  canceled  tariffs  by  carrier 252 

of  records;  regulations  apply  also  to  joint  agencies 271 

of   records   of   lessor   company 375 

of  records;   sale   of  records 349 

Destruction  of  records  : 

maps,   profiles,   plans,   specifications,    etc 435 

express  company  retired  from  business 440 

telegrams    and    cablegrams 400 

Detour  of  train  because  of  blockade;  adjustment  of  revenues  be- 
tween   carriers    213 

Device  : 

division  of  joint  rate  on   fuel  coal 324 

evasion  of  through  fare  by  selling  local  tickets 24 


954  Index  to  Confe;rkxce  Rulings. 

Device — Continued.  Ruling, 

evasion  of  through  rate  by  billing  locally  and  rebilling. .  . .  98 

lease     by     carrier     of     trackage     over    another    road,    avoid 

charges   on    material    153 

Dining  car;  charges  for  meals;  no  jurisdiction 384 

Direction,  rates  published  in  one  direction  do  not  apply  in  re- 
verse  direction   52 

Discipline,   matters   of,   between   carriers   and   their  agents   and 

employees   69,   105 

Disclosing   information;    name    of   consignee 356 

Discrimination  between  connecting  lines  in  division  of  rate  on 

fuel    coal    324 

Distance  tariffs  to  show  distance  between  freight  stations....        202 
Distinction  : 

in  rates,  based  on  difference  in  use  to  which  shipment  is  to 

be    put,    unlawful    34 

in    rates,    between    shipments    handled    b}'    steam    and    elec- 
tricity,   unlawful     2 

Diversion    (see  also  Washout)  : 

by  consignor,   account   washout   on   connecting  line,   carrier 

not   liable   147 

charges,   carload   transferred   into   two   cars   in   transit 357 

of  shipment  account  floods,  carrier  liable  for  excess  charges 

as   misrouting  83 

of  traffic.     Adjustment   of  revenues   between   carriers 213 

private  car  and  party,  account  floods,  short-line  mileage  rale.       138 

rules  reserving  to  carrier  right  of 146,  183 

Divisions  : 

contracts  for,  must  be  filed;  division  sheets  need  not  be  filed.       209 

express   company   not   entitled   to   rail   carriers 372 

Mexico,   publication  of,   to  and   from 269 

of  charges  on  detoured  trains  and  diverted  traffic 213 

of  joint  rates   on   fuel   coal 324 

Doors,  grain,  allowances  to  shipper  for  furnishing. ...  19,  78.  132,  267 
Drayage  : 

initial    line    liable    for    drayage    charges    resulting    from    its 

misrouting    3S3 

misrouted  shipment,  wrong  terminal  delivery,  no  refund.. 283,  392 
no  refund  where  routing  instructions  followed,  but  shipment 
not    diverted    in    accordance    with    understanding    not    in 

tariff     235 

resulting  from  wrong  terminal   delivery   due   to  misrouting, 

no    refund 25,    234.    283,    392 

charge,  tariff  providing  absorption  of 441 

Drummers,  preference  to  drummers  or  other  special  classes,  un- 
lawful      45 

Eastbound   rate   can   not  be  applied   westbound 52 


Index  to  Confe;re;nce  Ruungs.  955 

Eating  houses  :  Ruling, 

operated  for  employees  and  passengers,  free  transportation 

for 87 

no    passes    to    employees    340 

Effecth'E  date  of  tariffs  : 

first  tariff  filed  by  new  carrier,   date  omitted,   effective   im- 
mediately       73 

issued  and  used  before  August  28,  1906,  but  not  filed  until 

later    . . .  .• 100 

none,    illegal,    never    effective 12,    73 

Sunday,  lawful   47 

Election  by  shipper  as  to  released  rate;  carrier  must  inquire...  160 
Electricity  and  steam,  distinction  in  rates  on  trafific  handled  by, 

unlawful 2 

Electric  line.     Sec   Street  railways. 

Elevator,  lease  by  carrier  of  land  for,  at  nominal  rental 325,  421 

Embargoes,  tariffs  account  of,  filed  on  short  notice 437 

Employees   (see  also  Agent)  : 

American  Asso.  of  R.  R.  Superintendents,  free  transporta- 
tion       371 

American   Ry.   Asso.,   free   transportation 335 

application  of  hours  of  service  law 74,  88,  287,  342 

baggagemen  on  trains,  subject  to  hours  of  service  law 275 

bodies  of,  deceased  or  killed  in  service,  free  transportation, 

18,  193 
body  of  deceased   wife  of,   free   transportation   to   place   of 

interment    l"^-! 

bridge  company,  nonoperating,  no  passes 2(53 

Bureau  for  Safe  Transportation  of  Explosives,   free   trans- 
portation       335 

car-lighting   company,   no   passes   to   inspectors 169 

chief  interchange  inspectors,  free  transportation 371 

competency   of,    Commission   will   not   investigate 288 

cooks,  porters,  and  waiters  on  private   cars  may  be  carried 

free 301 

discharged,   transportation   of   household   goods 109 

disciplinary  matter  between  carrier  and 69,  105 

entering  another  carrier's  service,  no  free  carriage  of  house- 
hold   goods    255 

ex-employees,  families  of,   passes 158 

ex-employees,  traveling  to  enter  service  of  common  carrier, 

passes   to 1^2 

express  companies,   and   their   families,   passes  to 157 

free    transportation    for 95 

furloughed  and  on  leaves  of  absence,  entitled  to  passes....  55 

household  effects,  free  transportation  of 20afc,  255 

hours   of  service  law,   application 74,   88,   287.  343 

hours  of  service  law,  application  of,  to  employees  on  ferries.  108 


956  Index  to  Confe;re;nce  Rulings. 

Employees — Continued.  Ruling. 

inspection  bureau,   free   transportation 371 

joint    employee    of    express    and    railroad    companies,    free 

transportation     361 

killed  in  service,  passes  to   families 173,   193 

must  be  actually  in  service  of  carrier  to  obtain  pass 20Sa 

nonoperating    road,    families    of    deceased    employees,    free 

transportation     352 

omnibus   and   baggage    express    companies,    passes    to.... 95a,    216 

on  leave   to   fill   term   in   public   office,   pass 308 

private;  porters,  cooks,  and  waiters  may  be  carried  free....  301 

receivers  and  officers,  entitled  to  free  passes 165 

restaurant  employees  at  union  station,  free  transportation..  340 
tailor   making  uniforms   for   railway   employees,   under   con- 
tract,   passes    134 

water   lines;    interchange   of   passes   with    rail   lines 196 

weighing  bureau,   free   transportation 371 

Empty   cars,    demurrage 313 

Entertainments,   carrier   may   arrange   for   or   contribute   to,   in 

order   to   stimulate   travel 221b 

Equalization  over  one  route  of  rate  over  another 195,  220g 

Erring  road: 

alone    must   bear   burden    of   misrouting 137.    199,   286c 

alone   must   bear   burden   of   its   agent's   error 390 

Error  : 

additional   charges   through    shipper's 348 

agent's   in   punching   time   limit   on   ticket;    refund   of   addi- 
tion   charges     390 

fare  paid  under  misapprehension  of  privilege  ofTered  under 

through  ticket    .• 391 

in   billing,   delivering  carrier  must   collect   undercharges   re- 
sulting  from    16,    156 

in  destination,  by  shipper;   reconsigning  orders 237 

in  destination.     Return  of  astray  shipments 217 

in  loading  car;  shipment  recalled  in  transit;  charges  for  ac- 
tual   haul    248 

in  printing  tariff,  special  reparation  based  on 200a 

in  stating  concurrence  number 347 

of  agent  in   selling  colonist   ticket,   carrier's   loss 69,   277 

of  agent  in  punching  time  limit  on   ticket;   refund   of  addi- 
tional   fare    paid 266 

of  agent,  passenger  misrouted  or  required   to  pay  unneces- 
sary  transportation    charges 113.    167,    277 

of  conductor  in  honoring  ticket  over  wrong  line 105 

Estimated  weights  per  package,  tariff  should  define  size  of  pack- 
age      280 

Examiners,  credentials  must  be  honored  by  carrier  without  spe- 
cial  letters   260 

Excess    baggage    charges 326 


Index  to  Confkreince  Rulings.  957 

Exchange:  Ruling. 

bills  of  lading  should  show  origin  and  route 227 

of  passes.     See  Passes. 

of  services  by   telegraph   and   railroad   companies 364 

ticket  to  one  point  for  ticket  to  farther  distant  point 303 

Excursion  and  excursions  fares  : 

carrier   may   employ   ticket   solicitors   or   promoters 221c 

carrier  may  not  give  free,  for  commercial  association 272 

defined     304c 

exception  as  to  tariffs  in  section  22  not  applicable  to 208c 

fourth    section    applies    to 304a 

privilege  of  remaining  in  sleeping  cars  at  stop  over  point  or 

destination    51 

rate  must  be  same  for  all  schools  and  societies 71 

Excursion  tickets.     Sec  Tickets. 

Ex-employees  : 

deceased,  no  free  transportation  of  remains 285 

families  of,   passes 158 

free  transportation  of  household  goods,  none 109,  255 

passes  to,  traveling  to  enter  service  of  common  carrier....  102 

Exhibitions  : 

free   transportation    of   ores    to , 176 

reduced   rates    to,   without   tariffs 208c 

Expense  : 

of   collecting   undercharges    borne    by    carrier   at    fault 16 

of  fitting  cars  for  shipments,  no  allowance  unless  in  tariffs, 

19,   78,    132,   267,   292 

Explosives  : 

regulations  concerning,  apply  to  company  material 338 

tariffs   and   regulations    for    transportation    of 106 

Export  bills  of  lading,  rules  and  regulations  governing 378 

Export  business,   defined 353 

Export  rate  : 

inland    proportional,    subject    to    fourth    section 299 

shipment   to   Colon,    Panama 359 

tariffs  shall  specify  the  countries  to  which,  is  applicable...  389 

Express  company: 

brokerage  charge  for  clearing  goods  through   customs 300 

not  entitled  to  benefit  of  rail  carrier's  division 372 

passes  to  officers,  agents,  and  their  employees 157 

railroads    carrying   interstate    traffic   for   express    companies 

subject   to   act    197 

refund  of  prepaid  charges  on  undelivered  shipment 367 

valuation  and  liability  on  shipments  of  bonds 58 

Extension  of  through  ticket  by  one  carrier;  l)inding  effect  on 

other   roads    23,43 

Fabrication  in  transit.     Sec  Transit  privileges. 

False  billing,  undervaluation  of  shipments  by  consignor 58,  295 


958  Index  to  Conference  Rulings. 

Family  :  Ruling. 

definition    95c 

deceased  employee  of  nonoperating  road 352 

employee  killed  or  dying  in  service,  passes  to 103,   173,  193 

ex-employees  traveling  to  enter  service  of  carrier 158 

express  companies,  families  of  officers  and  agents,  passes  to.  157 

Government    officer's,    no    passes 20Sd 

local  attorney's  or  surgeon's,   no  passes 95o 

servants  are  included 63,  92,  95c 

wife  of  employee,  free   transportation  of  deceased 174 

Fares  : 

combination    of    party    rate    and    single    fares    as    device    to 

evade    through    fares 268 

commutation,   subject    to   fourth    section 304a 

excursion,   defined   304c 

excursion,  must  be  same  for  all  schools  and  societies 71 

excursion,  subject  to   fourth   section '. 304a 

higher  to  intermediate  point;  subsequent  reduction;  refund.  3^5 

of  same  character  are  to  be  compared  under  section  4....  310 
paid    under     misapprehension     of    privilege     offered    under 

through   ticket    391 

passenger,  may  not  be  applied  to  transportation  of  property.  212 

remain   in   effect  until  specifically  canceled 50,   104 

stating  fares  in  multiples  of  five,  no  excuse  for  violation  of 

section    4 309 

through,   may  not  be   higher   than   combination   of  interme- 
diate   fares   . . .  .■ 298 

transportation  of  Federal  troops  under  special  fares 218 

Federal  troops,    transportation    of,   under   orders 218 

Feeding  in  transit.     See  Transit  privileges. 

Ferries  (see  also  Car  ferries)  : 

employees   on,    application    of   hours-of-service    law 108 

municipal,  subject  to  act  when  engaged  in  interstate  trans- 
portation       162 

Fictitious  weight,  payment  of  charges  on,  to  obtain  free  icing.  152 

Filing.     See  Tariffs  ;  contracts. 

Flangers,  locomotives  equipped  with 328 

Floods.     See  Diversion. 

Floor  racks   in  refrigerator   cars   furnished   by   shippers 292 

F.   O.   B.   shipments,   demurrage   on 96 

Foreign  country.     See  Adjacent  foreign   country. 

Foreign  lines,  repair  of  cars   on 373 

Formal  complaints,  procedure  in 206 

Forwarders,   carriers,  agents  acting  as,   for  shippers 98.   337,   365 

Fourth  section  : 

absorption  of  switching  charges  to  competitive  points  only, 

304rf,  304<? 

applies   to   rates   and   fares   of  all   kinds 304 


Index  to  Confi<;rknce  Rulings.  959 

Fourth    section' — Continued.  Ruling. 

application    of    447 

discriminations  that  have  been  corrected  not  to  be  restored 

without  sanction  of  commission 395 

future    rate;    special    docket    cases 37G 

higher  fare  to  intermediate  point;  subsequent  reduction;  re- 
fund       385 

inland  export  and  import  rates 299a 

interpreted    293,   2996,   304 

not  to  be  disregarded  in  order  that  fares  may  be  stated  in 

multiples    of    five    309 

one  or  more  points  in   foreign  country 318 

only  fares  of  same  character  are  to  be  compared  under.. 304a,  310 
rates   from   branch-line   stations   not   directly   intermediate..  304/ 
rates   published   subsequent   to   February   17.   1911,   in   viola- 
tion   of    293 

transshipment   rates    304 

violation   of 406 

Franks,  issuance  of,  by  telegraph  and  telephone  companies...  SOod 

Free  storage  in  transit.     Sec  Storage  in  transit. 

Free  time.    Sec  Demurrage. 

Free    transmission    of    messages,    by    telephone    and    telegraph 

companies    ■ 30oc? 

Free   Transportation  : 

body   of  employee   killed   or   died   in   service 18,   173,   193 

body   of   ex-employee    285 

body  of  deceased  wife  of  employee 174 

Free  transportation  of  persons.     See  Passes. 

Free   transportation    of    property  : 

by  carriers  for  one  another 9,  225 

caretakers  of  shipments  for  Government,  for  charity  or  ex- 
positions       150 

college   supplies   398 

commissary   car   operated   by    carrier,    unlawful 257 

company  material  by  one  carrier  for  another 225 

company   material   for   repair   of  car 333 

company  material  for  repair  of  cars  on  foreign  line 373 

company   material   or  trucks    destroyed   on    foreign    line    to 

road   owning  224 

company  material,  returning  to  manufacturers  for  repairs..  22 

contractors,   material   for    20Sc 

county   authorities,    under    section    22,    lawful 311 

embargoes,  tariffs  account  of,  filed  on  short  notice 437 

exchange  by   telegraph  and  railroad  companies 3()4 

gasoline  motor  cars   moving  under  own   power 334 

for  postal  clerks   429 

for   townships   and   counties 452 

Government,    under   section    22 33,   3f),    f)5,   208f,  244 

household   effects    of   employee 2{)Sb,  255 


960  Index  to  Conference  Rulings. 

Free  transportation  of  property — Continued.  Ruling. 

household   goods   for   ex-employees 109,  255 

household  goods  of  joint  employee  of  express  and  railroad 

companies    361 

household  goods  of  inspector  of  American  Railway  Asso...  335 

ice  plant,  free  transportation  to  men  and  materials 124 

municipal  governments  in  adjacent   foreign   countries 118 

ores   for  exhibition   purposes 176 

public    museum    of   natural   history 185 

railway  Y.  M.  C.  A.,  library  books 330 

railroad   eating  houses    87 

'  Red  Cross  Society  car  for  instructions  in  relief  of  accidents.  259 

supplies  sold  to  carriers'  employees  b}-  conductor 413 

telephone  and  telegraph  companies,  men  and  materials  for, 

95a.    161,  219 

to  employees  of  omnibus  and  baggage  express  companies.. 95a,  216 

use  of  commission  for,  by  post-office  inspectors  off  duty...  377 
Freight  trains,  privilege  of  riding  on,  can  not  be  limited  to  one 

class 45 

Fruit.     See  Caretakers. 

Fuel  coal,  division  of  joint  rate  on 324 

Gasoline  motor  cars  moving  under  own  power 334 

Gondola  cars,   safety   appliances 329 

Government  : 

Canadian  customs  and  immigration   inspectors 345 

caretakers,  "necessary  agents,"  accompanying  property  for, 

passes    150 

deporta<tion   of   Chinese,   fares    for 107 

municipal,    in    adjacent    foreign    countrj^    no    free    transpor- 
tation       118 

officers   and   families   of,   no   passes 208d 

postal    cards,   transported   for,   reduced    rates 36.    65,  244 

state  or  territorial,  no  free  transportation  of  persons  for..  ..  297 
transportation    for    Federal    or    municipal,    at    special    rates, 

33,   65,   208^,   244,   297,  311 

troops  for,  transportation  under  orders 218 

Grain  : 

preservation  of  identity  at  transit   point 85.   181,  203 

reshipping  rate  in  effect  when  reshipped,  not  legallj'  appli- 
cable   119 

reshipping    rate    from    primary    market,    superseding    locals 

and   proportionals   57 

Grain   doors,   allowance   or   refunds    to   shippers    for    furnishing, 

78,   132,  267 
Grazing  in  transit.    Sec  Transit  privileges. 

Gross  ton.  defined 131 

Group  rates;   maintenance   of  relation   under   special   reparation 

orders    200a 

N 


Index  to  CoxferExce  Rulixgs.  961 

Half  fare:  Ruling. 

agent  fails  to  indorse  ticket,  selling  carrier's  loss 69,  277 

application  of  section  4 310 

child  under  12  years,  full-fare  ticket  purchased,  no  refund..  163 

Half   rates,    return    shipments,    must    move    over    original    out- 
going   route 42 

Handholds,   safety   appliances 67,  329 

Holding  companies:   Corporation   owning  a   railroad  that  it  has 
leased  to  a  carrier  for  use  in  interstate  traffic,   is  subject 

to    act    375 

Hotel  accommodations: 

must  be  kept  separate   from   transportation   fares 28 

privilege  of  occupj'ing  cars  at  stop-over  or  destination  point 

can   not  be   limited   to   particular   cluli 51 

Houks-of-service  law  : 

application   to   street   railways 56 

employees   deadheading,   not   on   duty   under 74 

ferry   employees    108 

interpretation    88,  287 

train  baggagemen   subject   to 275 

trainman    who    delivers    orders    afifecting    train    movements.  342 

House   cars,    safety    appliances 329 

Household  (,(,)ods  : 

of  employees,   free   transportation   of 20Sb 

of   ex-employee,   no   free   transportation   for 109,  255 

of  inspector  of  American  Railway  Asso 335 

of  joint  employee  of  express  and  railroad  companies 361 

Ice  plant  : 

contract  with  carrier,  free  carriage  of  men  and  materials..  124 

Icing,  free,  payment  of  charges  on  minimum  weight  to  obtain..  152 
iced   refrigerator  car  not  used;   shipper's  refusal  to  pay  ice 

charges    343 

Illness,   redemption   of  unused  passenger  tickets  because  of...  115 

Immigrants,    Canadian    fares,    no   jurisdiction 24 

Immigration  agents,  passes  to,  if  bona  fide   employees 208a 

Immigration  inspectors,   Canadian,  passes 345 

Imports  : 

advance    in    rate    while    shipment   on    seas Ill 

brokerage  charge  by  express  company  for  clearing  customs.  300 

commissions   on,   to  consignees,   not  sanctioned 7 

inland    proportional    rate    subject   to   fourth    section 299 

moving   from    port   purely   locally;    inland   proportional    not 

applical)le    170 

tariff    should    state    to   which    countries    import    rate    is    ap- 
plicable      389 

Industrial   switching   tracks 427 

Industry,    lease    of    propery    to,    in    consideratiou    of    exclusive 

traffic     94 

— :n 


962  Index  to  Coxfkrkxck  Rulixgs. 

Informal   complaint.      Sec    Speclxl    kepakatiox.  Ruling. 

Information  ;    disclosing   name   of   consignee 356 

Initial   c.\rrier.    liability    for    misrouting.      Sec    Misrouting. 

Inland  proportional  rate.     Sec   Proportional  rates. 

Inspection  bl^reau  of  carrier  :  pass  to  employee  of 371 

Inspectors : 

post    ottice;    use    of    commissions    for    transportation,    when 

off    duty    377 

tie   inspector,   pass    386 

Instructions.     Sec  Routinc,  ixstrlctions. 

Instructors  in  use  of  appliances  or  materials,  passes 320,  336,  346 

Insurance  companies,  agents  of.  not  entitled  to  passes 208a 

Interchange  of  passes.     Sec   Passes. 

Interest  on   overcharge   claims 379 

Intermediate  point,  rates  to.     See  Long  and  short  haul. 

Interstate  carrier   defined 418 

Interstate  r.\tes,  applicable  for  rail  haul  from  port  of  entry  on 

coastwise    trafific    369 

Intrastate  carrier,  when  subject  to  act 197,  368 

intrastate   carrier  handling  interstate   traffic 197,  368 

Intrastate  commutation  ticket,   use   on   interstate   journey....  26 

Intrastate  mileage  book,  use  on  interstate  journey 315 

Intrastate  shipment,  misrouted  over  intersta-te  route 140 

Investigation,    claims    must    be    investigated    by    carrier    before 

payment    15,    68,  236 

Investigation  and   suspension.     Sec   Suspension  of  tariffs. 

Joint  .\gent: 

destruction    of   records,    regulations    apply    to 271 

error    in    misrouting   shipment ,  .  254 

Joint  employee  of  express  and  railroad  company,  free  transpor- 
tation      361 

Joint  operation  of  two  lines  by  separate  company 229 

Joint  rates   (see  also  Through   rates): 

combination   of   to   common   point   and   local   ])eyond 215 

reduced  to  sum  of  locals,  minimum  weight  increased 282,  338 

water  line  with   rail  carrier,  subjects  traffic  to  jurisdiction..  66 

Jurisdiction  : 

Canada,  none  over  fares  between   points   in 24 

canal-boat  line,   when   subject   to   act 241 

car    ferry    company   subject    to   act 374 

charges    for   meals   in    dining   cars 384 

commission    can    not    require   additional    train    ser\ice 296 

courts,    in    misrouting    claims    that   are    barred   before    com- 
mission     139,  280(7 

damages   for  error   in   transmission   of  telegraphic   message.  317 

damages   to   perishable   shipment   resulting   from   delaj- 127 

demurrage    charges    on    interstate    traffic 54,  223 

inland   proportional,   export   and   import   rates 299 


Index  to  Conference  Rulfngs.  963 

JuRTSmcTioN — Continued.  Ruling, 

intrastate    traction    company    carrying    interstate    traffic    for 

express    companies,    subject    to   act 368 

municipal    belt    line    subject    to   act 89 

municipal   ferries  subject   to  act 162 

offsetting   under   or   over    charges 323 

over  telephone  companies  in   Porto   Rico 420 

over    trafific    moving   by    water    lines    under    through    bill    of 

lading    422 

Porto  Rican  ports  and  inland  points  in  United  States,  joint 

rail    and   ocean    rates   between 201 

port-to-port  traffic  in  connection  with  inland  rail  haul 155 

railroads    carrying   interstate   traffic    for   express   companies 

subject    to    act 197,    368 

refusal    of  shipper   to   pay   ice   charges 343 

telegraph  and  telephone  companies  subject  to  amended  act.       305 
transportation    from    nonadjacent    foreign    country    through 

United   States   to   adjacent   foreign   country 294 

wireless  message;   ships  at   sea 394 

Killed.     Sec  Employees. 

Ladders  :   Safety  appliances  .';29 

Lake-.'^nd-r.ml  route    (see  also   Car   ferries): 

in  absence  of  instructions  carrier  properly  forwards  all-rail, 

190.    214.    284 

Land  ac.ents,  passes  to.  if  bona  fide  employees 208a 

Land  comp.\nv  may  give  away  tickets  bought  at  published  fare..      154 
Large  car  : 

loaded,   shipment   transferred   liy   carrier   to   two   small   cars, 

250a,   273 

ordered,    small    car    furnished 274 

Lease  : 

by   carriers   of   elevators   at   a   nominal    rate 421 

by  carrier  of  trackage  rights,  as  device  to  avoid  charges  on 

materials     153 

of  property  by  carrier  to  shipper,  and  purchase  of  traffic.  94 

of   railroad-owned   land,   I)y   shipper,    at    nominal   rental....        325 
Leased  lines  jointly  operated  through   scj^arate  company;   tariff 

concurrences    229 

Leoal  rate : 

lowest  combination  of  published  rates  in  absence  of  tlirough 

rate   256 

lower  of  two  conflicting  rates  in   same  tariff 2.39 

one  in  effect  on   date  of  recci]>t  of  i)ro])crty    for  Iransijorla- 

tion     172 

one   in    effect   over   actual    route   of   movement 195,   214a 

reissue    of   canceled    rate 344 

transportation    stopped   short    of   intended    destination 350 

Lei'.ai,   kkmedies,   carriers   must   exhaust,   in   collection    of   under- 
charges     •'».    1 87 


964  Index  to  CoxfErunce  Rulixgs. 

Lessee  and  lessor  roads  :  Ruling. 

corporation  owning  leased   line,   subject   to   act 375 

joint  operation  of  combined  road  under  special  arrangement.  229 
lessee    not   serving   public   as    common    carrier,    lessor   only 

to   file   tariffs 180 

shipments    routed   over   lessor   road    but   handled    b)^   lessee 

road ;    same    delivery 168 

Less-than-carload    shipments    (see    also  Carload  rate),'  collec- 
tion by  carrier  and   free   switching  from   industries 97 

Liability  for  misrouting.     Sec  Misrouting. 

Lighting   company,    no    passes    to   employees    testing   lights    on 

trains    169 

Lime,  rule  permitting  stoppage  in  transit  and  substitution  of  ce- 
ment,    unlawful 181 

Limitation  : 

carrier  can  not  waive  the  statute,  and  revive  barred  claims.  220/ 
effect  of  two-year,  in  the  act,  upon  reparation  claims..  10,  220;,  307 
jurisdiction  ,of   courts    in    misrouting    claims    barred    before 

commission    139,  286a 

statute  does  not  run  as  between  carriers 306 

Limited  tickets.     See  Tickets. 

Linemen,   telegraph   and   telephone    companies,    free   passes, 

95fl,    161,   219 

Liquor,    refund    of   prepaid    charges    on    undelivered 367 

Live  stock.     Sec  also   Caretakers. 

demurrage ;    poultry    not    included 313 

Loading  in  transit;  loss  of  privilege  by  misrouting 370 

Local  billing  and  rebilling,   to   evade   higher   through   rate....  98 

Locomotives   equipped   with    snowplows   or   flangers 328 

Long  and  short  hall  (sec  also  Fourth  section)  : 

absorption  of  switching  charges  to  competitive  points  only.  SO-td 

applies  to  rates  and  fares  of  all  kinds 304a 

future   rates;   special   docket   cases 376 

higher    fare    to    intermediate    point;    subsequent    reduction; 

refund .  385 

inland    export   and    import    rates 299 

interpreted   293,  299,   304 

one  or  more   points  in   foreign   country 318 

only  fares  of  same  character  are  to  be  compared  under....  310 

rates  from  branch  line  stations  not  directly  intermediate..  304/ 
rates  in  violation  of  rule  of  section  4  may  not  be  restored 

without   sanction   of   Commission 395 

rates   published   subsequent   to   February    17,   1911,   in   viola- 
tion  of   fourth   section  . .  .- 293.    395 

rule  not  to  be  disregarded  in  order  that  fares  may  be  stated 

in  multiples  of  five 309 

transshipment    rates 304 

Long  ton,    defined 131 


Index  to  Confkrknce  Rulings.  965 

Lost  ticket.     See  Tickets.  Ruling, 

Lubricating  companies,  agents  of.  no  passes 208a 

Lumber,    creosoting,    transit    privilege    of    six    months    not    ex- 
cessive     232 

Machinery,  fitting  cattle  cars  for.  no  refund  unless  in  tariff....  19 

Mailing  list  for  distribution  of  ofiicial  circulars  and  rulings..  ..  211 
Maintenance  of  rate   (see  also  Orders  of  commission)  : 

group   rates;   maintenance   under   informal   orders 200a 

or  relative   adjustment;   error   in   printing  tariff 200a 

relation    in    rates   between   raw   material    and    manufactured 

products    200a 

through  rate  exceeds  combination  on  important  basing  point  200a 
to    conform   to   orders   of   commission;    to   group   points   or 

on   like   commodities 130 

under   informal   reparation   orders 14,   200,   37f) 

Material,  company.     See  Company  material. 
Meals  : 

carrier    may    publish    excursion    fare    including    meals,    but 

must   also   offer   transportation   separately 28 

charges   for,   in   dining   oar;   no  jurisdiction 384 

Measure  of  damages  under  uniform  bill  of  lading 387 

Messages  by  telephone  or  telegraph,  interstate 30.") 

Mexico  (see  also  Adjacent  foreign  country)  : 

overcharge  on   shipment  to,   refunded 126 

publication    of   divisions    of  cates   to   and    from 269 

Mileage  books  or  tickets  : 

application   of  section  4 310 

distances    between    stations    not    required    to    be    shown    in 

tariff    202 

in   part    payment   of   ticket 382 

insufficient  coupons,  passenger  may  pay  for  balance  of  jour- 
ney at  regular  per  mile  rate  under  tariff  rule 81 

not  good   in   new   territory   unless   so   provided   in   tariff....  178 

rates   must   be    published 208^ 

rules  governing  redemption  should  l)e  in   tariff 228 

state,  used  on   interstate  journey 315 

Mileage  tariffs,   to   show  distances  between   freight   stations..  202 

Milk,  caretakers  of,  not  entitled  to  free  transportation 21 

Milling  in  transit.     See  Transit  privileges. 
Minimum   weight: 

class  rate  and  minimum  makes  lower  charge  than  commod- 
ity rate  with   higher  minimum,   latter  applies 84 

increased    when    through    rate    reduced    to    sum    of    locals; 

basis  of  reparation 282,   338 

joint   through    rate    must   l)e    snbject   to    only   one 264 

larger  car  furnislicd  tlian  ordered;  connecting  linos  no  rules 

covering    274 

payment   of,   to   ol)tain    free   icing   under   tariff l.')3 

shipment    transferred   l)y   carrier   into   two   cars 273 

transfer   of   shipment   in   transit   to  another   car 331 


966  Index  t(i  ConfKrKxci-:  Rulings. 

Ruling. 
Ministers,   free  transportation  does   not   include   families   of....      208d 
Misapprehension.     Sec  Error. 
MiSBiLLiNG,    undervaluation   of   shipment   by    consignor 58,   295 

MlSQUOT.\TlON  : 

of  Canadian   rates,   carrier  must   collect  undercharges  262 

of  rate,   not   a   basis   for  reparation 254 

shipment    should    move    by    route    carrying    rate    quoted    if 

lower    than   other   routes 186 

MiSKOUTiNG   (see  also  Diversion)  : 

agreement    between    carriers    respecting    responsibility    for 

misrouting    traffic    198 

adjustment    of    claims    for 397,    444 

all-rail    and    lake-and-rail    routes    available 190,    284 

liill  of  lading  specifying  route  and  rate  applying  over  dif- 
ferent   route 159,    186,    192.    214t,    231,    243,    286/ 

lilockade   on   specified   route,   diversion   order   by   consignor. 

carrier    not   liable 147 

car-ferry    routes 316 

carrier  at  fault  to  bear  entire  burden 192,  198,  205,  214rf,  286 

carrier    at    fault    liable    for    storage    and    drayage 383 

company    material,    routing   instructions    violated 143 

claims    that    are    barred    before    Commission,    jurisdiction    of 

courts    139.   286a 

combination  rate  stated  in  bill  of  lading;  shipment  sent 
l)y  another  route  with  higher  joint  through  rate,  mis- 
routing    231 

demurrage   ordinarily   not   refunded  in   misrouting  cases..  32.   220r 
diversion   of   shipment   account   blockade,   carrier   liable    for 

excess    charges    as    misrouting 83 

due    to    shipper's     error 433 

error  of  joint  agent  of  two  lines  in  forwarding  from  inter- 
mediate   point     253 

inconsistent  instructions   followed:  transit  privilege  lost....        370 
indirect  and   longer  route   carr\'ing  lower  rate  bu't   not   rea- 
sonable      91 

jurisdiction  exclusive   in   Commission  over  claims   for 286a 

liability  of  initial  carrier  for  failure  to  transmit  instructions, 

137,   199,   230,   286 

over  line   of  carrier  not   subject   to   the   act 93 

over    line    without   legal    pulilished    rate 90.    93 

passengers,   through   errors   of  agents 113.    167 

principles   fixing  liability  and  governing  claim   adjustments, 

159,    2Q5.    214,    230,    286 

prosecution   for  failure  to  obey  routing  instructions 332 

road  having  trackage   rights  handles   shipment   routed   over 

lessor  road;   same   delivery;   no   misrouting 168 

shipment  that  could  move  intrastate  sent  over  higiier  in- 
terstate   route 140 


Index  to  Coxfkrexck  Rulixcs.  967 

MiSROUTiNG — Continued.  Ruling, 

transit    privilege    lost    as    result    of    misrouting.    erring    road 

liable    2150 

wrong   terminal   delivery   resulting    in    drayage   expense,   no 

refund     25,    234,    286rf,  392 

MoNEV,   transportation   must   be   paid   for  in,   not   in   services   or 

property    207 

Monthly  reports,  time  and  manner  of  filing  with   Commission.  30 

Motor  c.\rs,  gasoline,  moving  under  own   power 334 

MuNiciP.M. : 

lielt    line,    sul)ject    to    act 89 

ferry,    subject    to    act 102 

government,  in  adjacent  foreign   country,   no  free  transpor- 
tation       118 

government,   transportation   for    33,   6,5,   244 

MusEU.M  : 

of  natural  history,  public,  free  transportation  of  property  of.  185 

of  natural  history,  public,  no  passes  to  employees 245 

N.WY  : 

free   transportation   to   officers   of,   unlawful 208^/ 

free  transportation  of  naval  and  marine  forces  under  orders.  218 

Net  ton.    defined 131 

New  lines,  Rule  44  of  17-A  applies  to  newly  constructed  roads.  4 

News   comp.\nies,   employees,    other  'than   newsboys,    no   passes.  95a 
Newsp.aper   employees,   transportation  of,   on   special   newspaper 

trains    212 

Nominal  rent.^l,  lease  of  railroad  land  by  shipper  at 325 

NONOPERATINC,    R0A[)S  : 

family  of  deceased  employee,  pass 352 

officers,    pass 354 

Northbound  r.-vte  can  not  be  applied  southbound 52 

Notice  : 

less  than  statutorj',  for  tariff  of  newly  constructed  lines...  4 
of  arrival,    damages   to   perishable   shipment   resulting   from 

delay    in 127 

of  arrival   at   named   address;   failure   to  give;   demurrage...  36(5 
of  arrival,   demurrage  accrues   on   prohibited   "order   notify" 

shipment     SCil 

statutory,  expiring  on   Sunday,  tariff  legal 47 

Officers   (sec  also   Employees)  : 

of  Government,   on   passes   to,   or   families 208</ 

nonoperating   road,   no   passes 355 

subsidiary   railroad   companies,  passes   to 95(r 

of  railroad   in   adjacent   foreign   countries 434 

Offset: 

ofTsetting   of   under   or   over   charges,    no   jurisdiction 323 

shipper  may  not  oflfset  overcharge  claim  against  freight  bill.  48 
undercharge,     I)y    carrier,    against    overcharge    on    another 

shipment     1-i-!.  •!'~3 


968  IXDKX    TO    C(JXFI{RI':xCli    RULIXGS. 

Ruling. 

Oil  companies,  agents  of.  no  passes 208a 

Omnibus  companiks   (sc\'  also  Transkek  companies): 

joint   rates   with   railroads 164 

no  passes  to  officers  and   employees   of 95a,  216 

Operators  of  gasoline  motor  car  moving  under  own  power....        334 
Ordek  notify.     See  Shippers  okdek  notify. 
Orders  of  Commission: 

discrimination  will  not  be   caused   by   reparation   orders....      220f 
rates    reduced    after    formal    complaint    filed    will    be    main- 
tained   two    years 11,    14 

relative  adjustment  of  rates,  to  group  points  or  on  like  com- 
modities,  preserved   by   carrier   in   obeying   order 130 

reparation,  precedents  for  entry  of  similar  orders  covering 

like  shipments    49,  200c.  220d 

special    reparation    orders    require    maintenance    of    reduced 

rate    14,   220c 

Ores,  free  transportation   to  and  from  exhibition. 176 

Outbound  charges,  on  returned  shipment,  may  not  be  refunded 

by  carrier  and  charged  against  original  consignor 249 

Overcharge  claims   (see  also  Claims;  Special  reparation)  : 

interest   on 379 

on  one  shipment  set  of¥  by  carrier  against  undercharge  on 

another    133,    323 

offsetting  of  over  or  under  charges,  no  jurisdiction 323 

shipper    may    not    offset    against    freight    charges    on    other 

shipment     48 

shipment   to   adjacent    foreign    country,   Mexico,   refunded..        126 

Package,  estimated   weights  on,   tariffs   should   define  size 280 

Panama : 

coastwise   traffic   over   Panama   Railroad 369 

shipments  'to    Colon 359 

Panama  Canal  Act  interpretation 461 

Parking  cars   (see  also  Sleeping  cars) 51 

Party  rate  tickets  : 

application    of    section    4 310 

may  not  be  used  with  single  fares  to  defeat  through  fares.       268 
Passenger  fare.     (See  Fares.) 
Passengers    (sec  also   Tickets)  : 

Commission   can   not   require   additional   train    service 296 

deprived  of  return  portions  of  ticket  lost  by  carriers 247 

deprived     of    return    portions     of    ticket    through    error    of 

agent    167 

discontinuing   journey    short    of    intended    destination,    legal 

rate   350 

injured   in    wreck,    refund    of   resulting   storage    charges    on 

trunk    61 

misrouted  by  carrier's  agents  or  to   put  unnecessary   trans- 
portation   charges 113,    167 


Index  to  Coxferexce  Rulixgs.  %9 

Passengers — Continued.  Ruling, 

privilege   of  riding  on   freight   trains   can   not   be  limited   to 

one    class 45 

reaching   last   carrier    after    expiration    of   time    limit,    must 

pay   local    fare 44 

reparation  not  ordinarily  allowed  by  Commission  informally 

where    fare    has    been    reduced 46 

subpoenaed  as  witness  and  delayed  at  stop-over  point  beyond 

ticket    limit 60 

Passes  : 

application   for,  must  show  sex  of  children 290 

attorneys  and  surgeons 412,  426 

attorney,  local,  not   regularly   employed,   none   to   family...  95 

baggage  companies,  except  baggage  agents,  none 95a,  216 

body  of  deceased  wife   of  employee  -to   place   of  interment.  174 

body  of  employee  killed   or  died   in   service 18,   173,   193 

body  of  ex-employee,   no   free   transportation 285 

bridge  company,  nonoperating,  no  passes  to  employees....  263 

Canadian   customs   and    immigration    inspectors 345 

caretakers  accompanying  fruit  by  express,  transportation  in 

passengers   cars 179 

caretakers  accompanying  shipments   for  Government,  or  to 

expositions,   or   for   charity 1 50 

caretakers  accompanying  shipments  where  carrier  furnishes 

refrigeration    171 

caretakers  of  gasoline  motor  car  moving  under  own  power.  334 

caretakers  of  bees  in  hives 112 

caretakers    must    return    to    point    of    origin    over    original 

route    189 

caretakers  going  to  get  fruit  but  returning  without  load..  ..  1 

caretakers   of  milk 21 

caretakers,  only  trip  or  round-trip,  not  annual  or  time....  37 

car-lighting   company,    no   passes  to   inspectors 169 

carriers  not  subject  to  act,  no  passes  for  employees 95^ 

children,  sex  of,  must  be  shown  on  application  for 290 

Commission   can   not   undertake   to   determine   who   are   eli- 
gible   for 95i 

commissioners   of  states,   on   interstate  journeys 35 

contract  between  carrier  and  ice  company  for  free  transpor- 
tation      124 

contractor,  employees  of,  for  work  on  line 20Sc 

cooks,  porters,  and  waiters  on  private  cars 301 

correspondence  schools,  agents   of,   not  entitled   to 20Sa 

customs  broker    454 

deportation   of   Chinese   l)y    Government 107 

destruction  of  used  passes 9'ilc 

employees    and    families    of,    on    leave    to    engage    in    other 

business    308 

employees   of   nonoperating   bridge   companies,   no   passes..  263 


970  IxDKx  TO  CoxfKrknck  Rulings. 

Passes — ■Continued.  Ruling, 

employees  of  ()iiinil)us  and  baggage  express   companies....  216 
employees    of   water   lines    subject    to   act;    interchange    rail 

passes    for 196 

employees  of  inspection   and   weighing  bureau  of  carrier.  371 

employees  of  restaurant  at  union  station 340 

employees  on  leave  of  absence  or  furlough 55 

employees    on    private    cars 301 

exchange  by  telegraph   and   railroad   companies 364 

exchange   with   wireless   companies 410 

ex-employees,  traveling  to  enter  service  of  common  carrier.  102 

express  companies,  officers,  employees,  and  families 157 

"family,"    definition 95c 

families  of  deceased  or  killed   employees 103,   173,   193 

families  of  deceased  employees  of  nonoperating  road 352 

families    of    employees    of    express    companies 157 

families    of    employees    of   joint    agencies 448 

families  of  ex.-emplcyees 158 

families   of   local    attorneys    and    surgeons,    no    passes 95(7 

form    of 95 

Government   officers   under   section   22 208<^ 

instructors   in   use   of  appliances   or   materials 320,   336.   346 

insurance    companies,    agents    of,    not    entitled    to 208a 

labor  agents    411 

linemen   of  teleplione  and  telegraph   companies 95fl,   161.   219 

land  and  immigration  agents,  not  entitled   to 208a 

ministers,    does   not   include    family 208r,  208rf 

museum,   public,   no   passes   to   scientists 245 

news  companies,  employees,  other  than  newsboys,  none  to.  95*; 

newspaper    employees    on    special    newspaper    trains 212 

nurse,     trained 417 

officers    of   nonoperating    road 355 

oil  and  lubricating  companies,  agents  of,  not  entitled  to....  20Sa 

postal    clerks,    families    of 429 

preservation   of   used   or   canceled   passes 95h 

private   cars;   cooks,   porters,   and   waiters   on 301 

prosecution    for   unlawful   issuance   or   use   of 95a 

rail  or  water  carriers  filing  tariffs,  employees  entitled  to...  95_q' 

Railway  Mail  Service  employees,  passes  or  reduced  rates  to.  95/ 

receiver,   officers   and   employees   of,   entitled    to 165 

Red  Cross  Society's  car  and   employees,   for  instruction,  re- 
lief  of   accidents 259 

servants   with    family    (reverses    Rule    63) 92,    95(- 

sex  of  children  must  be  shown  on  application  for 290 

stage  line   not  subject  to  act,  none  to  employees 95(7 

station   agent    devoting   a   portion    only    of   time 446 

steamship  company,  if  not  subject  to  act,  employees  not  en- 
titled       95a 


^  Index  to  Coxfkrexce  Ruliixgs.  971 

Passes — Continued.  Ruling, 

subsidiary  line,  no  passes   to   employees  except  on   carrier's 

business    gSir 

superintendent   of   Canadian   mail   service 459 

surgeons,    not    regularly    employed,    none    to    family 95« 

tap  lines 460 

tailors  making  uniforms  for  railway  employees,  under  con- 
tract            134 

telegraph   and   telephone   companies,   linemen 93(7,   161,   219 

tie    inspector 386,    430 

to  persons  traveling  at  expense  of  state  or   territorial  gov- 
ernments         297 

train  auditors  employed  by  audit  company 400 

transfer   companies,   employees,   none   to 95a,   210 

traveling  secretaries   of   Y.   W.   C.   A.,    none   to 278 

use  of  commissions   by  post-office   inspectors  ofi  duty 377 

veterinary   surgeons   449 

witnesses    not   entitled    when    carrier   has    no    legal    interest 

in  proceeding 319 

Payment: 

demurrage  accruing  while  agent  awaits  authority  to  accept 

check    39 

for  'transportation  to  be  made  only  in  money,  not  services.       207 

telegram   relating  to  traffic 327,  351.  363 

Perishable  ereight   (see  alsn  Caretakers)  : 

delayed   notice   of  arrival,   damages 127 

refrigeration   service  by  carrier  included  in   rate;   no  passes 

to    caretakers    171 

Philippines,  tariffs  containing  export  rates 389 

Picnics,   fares   for   societies   and   schools,   raust   l)e   nondiscrimi- 
natory      71 

Pile  driver.     See  Derrick. 
Placing   car.     See   Switching. 

Porters  may  be  carried  free  on  private  cars 301 

Porto  Rico  : 

joint    rates    from    ports    in,    to    inland    railpoints    in    United 

States     201 

tariffs   containing  export   rates 389 

PoRT-To-roRT   traffic,    in    connection    with    inland    rail    haul,    sub- 
ject   to   act 15.").    201 

Postal    cards,    may    be    transported    for    Government    at    spe- 
cial   rates 36,   65,   244 

Posting   name  of   resident   agent  at   blind   sidings 289 

Posting  tariffs  by  parent  line   for  subsidiary   line 86 

Post-office    inspectors'    use    of    commissions    for    transportation 

when    ofT    duty ■!77 

Poultry    (sec   also   Caretakers),    not    considered    live    stock    for 

demurrage    purposes 313 


972  Indkx  to  Coxferknck  Rulings.  , 

Practice   Rules:  Ruling. 

briefs,    preparation    and    filing 40,    149 

oral    argument   before    Commission 149/ 

Precedents;    reparation    orders;    reparation    on    like    shipments, 

49,  200c,  220d 

Preferential  rates : 

division   of  joint   rate   on   fuel   coal 324 

may  not  be  given  to  carriers 225 

Prepaid   shipment  : 

undelivered  because  of  prohibition  law- 367 

underbilled,    delivering    line    must    collect    undercharge....        156 
Prepayment,   special  understanding  v^^ith   shipper  as  to  prepay- 
ment on  shipments  to  nonagency  stations 20 

Preservation  oe  records,  regulations  apply  also  to  joint  agencies.       271 

Preservation  of  tickets,  canceled,  by  carrier 252 

Primary  market,  reshipping  rates  on  grain   from 57 

Private  car  : 

defined  in   connection  v^^ith  demurrage 79,   122,   128,   222 

demurrage  on,  out  of  service  on  carrier's  storage  track....        123 
demurrage   on,   under  Uniform  Demurrage   Code,   Rule   1...        313 
diverted    account    blockades,    occupants    entitled    to    short- 
line   mileage   rate 138 

free  transportation  for  cooks,  porters,  and  waiters  on 301 

when   in  railroad   service 313 

Private  sidetrack.     Sec   Sidetrack. 

Privileges:    Sec   Reconsignment   privilege;    vStorage   in   transit; 
Transit  privileges. 
fare  paid  under  misapprehension  of  privilege  offered  under 

through    ticket 391 

Procedure  in   formal   complaints 206 

Process,   legal,   passenger   obeying,   delaying  at   stop-over   point 

beyond  limit 60 

Prohibition  law;  refund  of  prepaid  charges  on  undelivered  liq- 

our    367 

Proportional  r.^tes  : 

inland,  not  applicable   on   import  tratific  handled   locally....        170 

inland,  export  and  import,  subject  to  fourth  section 299 

long-and-short-haul    provision,   application    to 304 

defined 304& 

Prosecution  : 

failure   to   obey   routing  instructions 332 

of  carriers  participating  in  transportation  without  published 

rates    184,   194 

Public  Office:   no  pass  to  railroad  employee  on  leave   to  hold.       308 

Pullman  cars.     Sec  Sleeping  cars. 

Ql'arry.  lease  by  carrier  of  trackage  rights  to;  device  to  avoid 

charges    153 


Index  to  Coxfkri^.xce  Rulings.  973 

Quotation  :  Ruling, 

erroneous,  Canadian  rates,  carrier  must  collect  undercharge.       262 

erroneous,  of  rates,  not  a  basis  for  reparation 186,  254 

from   Commission's   correspondence,  must  be  made  in   full.         29 

Raii,  and  lake 190,  214,  284 

Rail-and-waTer   routes,   defined 316 

Railroad.     Sec  also  Carriers. 
Railroad  consignee: 

division   of  joint   rate   on   fuel   coal 324 

material    for   repair   of   car,    free   transportation 333 

not  to  be  given   preferential   rates 225 

R.MLRO.'XD    eating    houses    for    employees    and   passengers,   free 

transportation    87,    340 

Railway   mail    service,    employees   entitled    to    passes    when    on 

duty    95/ 

Railway  Y.  M.  C.  A.,  free  transportation  of  library  books 330 

Rates    (see  also  Through  rates)  : 

applicable    on    shipment,    one    in    effect    on    date    of    receipt 

for    transportation     172 

applying   in    one    direction,    not   in    reverse    direction    unless 

so    published    52 

applying  only  on  coal  in  box  cars;  carrier  furnishing  hopper 

cars    liable    for   excess    charges- 120 

applying  to  shipments  stopped  in  transit  short  of  destination       350 

based   on   valuation   of   merchandise 295 

Canadian  rate,  not  filed  with  Interstate  Commerce  Commis- 
sion, can  not  l)e  applied  on  through  movement  to  Canada.       256 
carload,    not   applicable    where    shipment    taken    in    separate 

1.  c.  1.   lots 175 

carrier   without   published    rates   participating    in    misrouted 

movement    90,    93 

carrier   without    published    rates    participating    in    interstate 

transportation;   subject   to   prosecution 184,    194 

combination,   lowest,   of   rates    filed   with    Commission   must 

be    applied 256 

commodity    rate    supersedeas    class    rate    although    carrying 

higher    minimum     84 

combination   rate  may  not  be  applied  until   through   rate   is 

canceled    423 

combination   of,  on  one  junction  applied  on   shipment  mov- 
ing   via    another 195 

combination,  joint  rate  to  common  points  and  local  rate  or 

fare    beyond 215 

commutation,   application  of  fourth   section   to 304rt 

conflicting,  named  in  same  tariff,  lowest  applies 239 

demurrage    does    not    accrue    where    carrier    demands    more 

than   legal   rate 32 

disputed,   no   demurrage   accrues   if   carrier   wrong 32,   220f 


97-!-  Index  to  Coxferrxck  Rulings. 

Rates — Continued.                                                                                              Ruling, 
distinction    between    traffic   handled   l)y   steam   and    electric- 
ity,  unlawful    2 

excursion,   application   of  fourth   section   to 304a 

excursion,   defined 304c 

freight,  may  not  be  applied  to  transportation  of  passengers.  212 

import,   advanced   while   shipment  on   seas Ill 

inland  proportional,    export    and    import,    subject  to  fourth 

section     299 

inland  proportional  not  applicable  on  import  movement  lo- 
cally   from    port 170 

local  to  line  issuing  tariff,  not  applicable  lo'cally  over   con- 
curring  lines 281 

minimum   weight   governing  joint   through   rate 264 

named  in  bill  of  lading,  canceled  over  specified  route  before 

movement    243 

newly  constructed  lines,  publication  on  short   notice 4 

proportional,    defined 304[? 

reduced,    for   governments,    need    not    be   published, 

33.    36.    6.5.    208^-.    244 

rates,   reissue   of   canceled 344 

released,    dut}'    of    carrier    to    inform    shippers    and    secure 

election    160 

remain  in  effect  until  specifically  canceled .50,  70,   104 

reshipping  rates   on   grain   from   primary   market 57 

reshipping  rate  in  effect  when  grain   left   point  of  origin  is 

legal    rate     119 

telegraph  and  telephone,  must  be  fair  and  reasonable.  .305rf,  305<? 

through   rate  only  lawful   rate 443 

trade    name,    articles    sold    under 279 

transit,   in  effect  when   shipment  leaves  point  of  origin   are 

available    until    expiration    of    transit    limit 80 

transhipment,   application   of   fourth    section   to 304o 

troops  under  special  rates,  transportation  of  Federal 218 

unpublished,  not  recognized  as  basis  for  reparation 251 

use    to   which    shipments    will   be    put,    not    proper   basis    for 

distinction     in     rates 34 

valuation    of    shipments    1)asis    for 295 

written  requests  for  and  statements  of 457 

Reason.\ble  time  within  which  rates  must  be  reduced  in  special- 
docket   cases   33 

Recalled  shipments,  full   charges  must  be  paid  for  service  ren- 
dered      248 

Receiver,  employees  and  officers  of,  entitled  to  passes 165 

Reconsignment  privilege: 

charge   on   carload   transferred   into   two   cars   in   transit....  357 
charge   where   two   small   cars   are    furnished   in   lieu   of   car 

ordered    339 


Index  to  Conferkxce  Rulings.  975 

Reconsignment  privilege — Continued.                                                     Ruling, 
conditions   governing,   must  be   pul)lished;   must   be   reason- 
able             72c- 

includes    changes    in    consignee,    destination,    or    routing....        72c 

refused    shipment    114 

retroactive   effect   not   given   to,   on   special   docket (5,   77,   166 

unauthorized  by  shipper,  refund  of  charges 237 

Records    (sec  also    Destruction),   passes   and   memoranda   to   be 

preserved    95k 

Red    Cross    Society,    free    transportation    of   instruction    car    and 

attendants    259 

Redemption  : 

of  mileage   books,   rules   should   be   in   tariff 228 

unused  portion  of  excursion  ticket  on  basis  of  intermediate 

excursion    fare     :J03 

unused   portion   of  lost   ticket 238,   247 

unused   portion   of  ticket 76,   115.   265,   266,    303 

Reduced  rates  of  fakes  : 

authorized   departure   from   published   rates 33,   36,   208r,   244 

county   authorities,   under   section   22.   lawful 311 

convicts    431 

deportation    of   Chinese   by   Government 107 

Government    shipments,    when    contractor    not    interested, 

36,    65,    208c',    244 
may  be  given  to  such  persons  as  are  entitled  to  free  trans- 
portation           208rf 

postal  clerks  and   their  household  goods 429 

railroad    eating    houses 87 

returned  shipments  must  move  over  original  outgoing  route.         42 
to  persons  traveling  at  expense  of  State  or  Territorial  gov- 
ernments             297 

transportation    for    Governments,    without    publication, 

33,    36,    65.    208('.    244 

transportation    of    Federal    troops    under 218.    297 

Reduction  of  r.\tes  : 

tariff  publishing,   in   conformity   with    forma!   order,   may   re- 
duce  related   rates   on   short   notice 1.30 

while  formal  complaint  pending,  will  be  ordered  maintained 

for    two    yearsN 11 

Refrigeration  : 

by  carrier  included  in  rate;  no  passes  to  caretakers 17  1 

payment  of  cliarges  on  minimum  weight  to  obtain  free  icing.        152 
Refrigerator   cars: 

floor  racks   in,   furnished   by  shippers 292 

refusal    of   shipper   to    pay    ice    charges 343 

Refunds  : 

additional     fare     paid     l)y     passenger     unable     to     comi)hle 

journey    under    tickets    on    account    of    washout !lf> 


976  Index  to  CoxfErexce  Rulixgs. 

Refunds — Continued.  Ruling. 

agent's   error  in   fixing  time  limit   to   ticket 390 

car  fitting,  or  grain   doors,   no  allowance  unless   in   tariff, 

78,    132,  292 
commissions  or  refunds  influencing  traffic  equivalent  to  re- 
bates;   illegal    221a 

death   of   round-trip  ticket   holder   before   return   trip 393 

demurrage   resulting   from   strikes,   no   refund 8 

fare  paid  under  misapprehension  of  privilege  offered  under 

through    ticket 391 

from  legal  rates  and  charges  only  on   specific  authority  by 

Commission 49,   200,   220d 

higher  fare  to  intermediate   point;   subsequent   reduction...  385 

overcharge  on  shipment  to  adjacent  foreign  country,  Mexico.  126 

prepaid    charges   on   undelivered   liquor 367 

reconsignment   or   transit   rules   not   given   retroactive    effect, 

G,   77.  166 

shipper's   error  cause  of  additional  charges,  no  refund 348 

transportation   stopped   short   of  intended   destination 3.50 

unused  portion  of  excursion  ticket  on  basis  of  intermediate 

excursion    fare 265,  303 

unused   portions   of   lost    tickets 238,  247 

unused    portion    of    ticket    invalidated    by    agent's    error    in 

punching  limit    266 

unused  portions   of  tickets 76,   115,   265,   303,  380 

validation   of   ticket,   failure   of  passenger  to   secure 125,  167 

Refund  of  passenger  fakes  on  account  of  high  water 438 

Refuse  shipment,   reconsignment   of 114 

Regulations  for  transportation  of  explosives 106 

Released  rates.     See  Rates;  Valuation. 

Relief  of  agent,  does  not  relieve  carrier  from  collecting  under- 
charge       151 

Remedies,    refusal    of    shipper    to    paj'    ice    charges 343 

Repair  of  cars  on  foreign  lines 333,  373 

REPARATif)X   {sec  also  Refunds;  Special  reparation): 

admission   that   rate   charged  was   unreasonable 396 

assignment    of   claim 362 

awarded   to    shippers   who    paid    charges,    though    complaint 

filed    by    bureaus » 246 

claim  for,  effect  of  two-year  limitation  in  the  act   ....10,  220/,  307 

claims  for,   filed  by  claims  bureaus 246 

claims,   on   informal   docket,   practice 200,   376,  425 

complaints  involving;  procedure   in 206 

joint   rate   reduced    to   sum   of  locals:    minimum   weight   in- 
creased      338 

misquoted    rate    not    a    basis    for 254 

no   award   in   formal   cases   unless   prayed   for 206c 

none    for    drayage,    wrong    terminal    deliver}'    through    mis- 
routing    392 


Index  to  Coxfekkxcr  Rulixgs.  977 

Reparation — Continued.  Ruling. 

not  awarded  on  basis  of  rate  not  on  file  with   Commission.       251 

on  basis  of  State  rates 419 

orders  extend  only  to  particular  shipments,  but  Commission 

will  enter  similar  orders  covering  like  shipments.  .  49,  20()c,  220d 
through    rate    reduced    to    sum    of   locals    but    minimum    in- 
creased          282 

Repayment,  by  carrier  to  shipper,  cost  of  construction  of  private 

sidetrack   110 

Reports  : 

by    electric    street    railways 418 

lessor  bridge  companies  must  file 399 

monthly,   time   and   manner   of   filing   with    Commission....         30 

telephone   and   telegraph   companies   must   render 305e 

terminal   companies   must   render 312 

Reservation  of  right  to  route  traffic,  or  divert,  by  carrier.  ...  146,   183 
Reshipping  rates; 

grain,    from    primary    market,    superseding    locals    and    pro- 
portionals             57 

grain,  in  effect  when  shipment  left  point   or  origin  is  leual 

rate     119 

Restaurant   employees,   no   passes 340 

Retroactive  effect  : 

demurrage   rules   of   Commission T9(f,    128 

not  given  to  reconsignment   or  transit  rules (5,  77,   166 

not    given    to    rates 205 

Return  of  caretakers,  free   over  same  route   as  original   move- 
ment             189 

Return  shipments: 

astray    217 

at   half  rates,   must  move   over  original   outgoing   route....  42 

company   material  for  repairs,   free   carriage 22 

consignor    recalls    shipment,    must    pay    charges    for    actual 

haul    248 

outbound     charges     refunded     to     consignee     and     charged 

against   consignor    249 

Return  trip.     See  Tickets. 

Route,  change  of,  by  consignee 453 

Route,     indirect    and     longer    route    not     reasonal)le,     aitiiough 

cheaper    91 

RouTiNC  (see  also  Misroutinc, ) : 

all-rail    and    lake-and-rail    routes    avaihible 190,    284 

blockade   on   specified   route,   diversion   order  by   consignor, 

carrier   not    liable 147 

combination    rate    by    one    route    shown    on    bill    of    latling. 
higher    joint    rate    by    other    route:    duty    to    forward    by 

cheaper    route --51 

principles   fixing  Iial)ility   and   governing   chiini   adjustments, 

205.    214,    482 


978  T\i)i:x  to  ConfKrknck  Rulings. 

RouTiNC,—C(';( /('/(»(■(/.  Ruling. 

reconsignment    includes    changes    in    route    or    routing 72c 

reservation    by    carrier   of   right   to   route    shipments 146,    183 

right    of.    expressly    given    shippers 332 

road  having  trackage   rights  handles   shipment   routed   over 

lessor   road;   same   delivery;   no   misrouting 168 

RoLTiNc,   instructions: 

bill    of   lading    naming    combination    rate    lower    than    joint 

rate    by    one    route 231 

bill   of  lading   naming   route   and   rate   applying  over   differ- 
ent  route    159.   186.   192,   214i,  243.   286/,   370 

duty   of   carrier  to   observe 159.    214.    230,    321 

duty  of  initial  carrier  to  transmit  to  connection 137.   199 

inadequate,    for    checking    baggage 326 

inconsistent,    followed;    carrier    liable 370 

prosecution    for    failure    to    obey 332 

Rule  in  tariff,  unlawful  /rr  sr,  can  not  be  used 145 

Rules  of  practice.     Sec  Practice  rules. 

Rulings  and  circulars  of  Commission,  distribution  of 211 

Safety  appliances  : 

handholes  required  on  passenger  cars  and  cabooses 67 

locomotives    equipped    with    snowplows    or    flangers 328 

order    entitled    "U.    S.    Safety    Appliance    Standards"    inter- 
preted             329 

Sale  : 

of    records    as    waste    paper 349 

of  'tickets  after  departure  of  last  train   on   tinal  selling  date.       182 
proceeds    of,    insufficient    to    cover    freight    and    demurrage 

charges,   no  waiver    41,   145 

vScHOOL,    commutation    tickets    to   pupils 99 

Scientists,   employed   by   public   museum,    no   passes   to 245 

Secret.\ries,    traveling,    of    Young   Women's    Christian    .Associa- 
tion,   no   passes 278 

Servants,   accompanying  family,   passes    (reverses   rule  63) 92,   95c 

Set-off.     Sec  Offset. 

Sex  of  children  must  be  shown  on  application  for  passes 290 

Sheep,  not  shipped  out  of  grazing  point  liecause  of  snowstorm, 

lose    transit    rates 53 

SHiPPf;R,    lease    of    property    to,    by    carrier,    in    consideration    of 

•traffic 94 

Shipper's   order    notify,    shipment    accepted,    against    tarif?;    de- 
murrage  on   account   of   failure   to   notify 261 

Sidetrack  : 

on  marshy  land   sank   with   cars,   demurrage  waived 117 

posting   name   of   resident   agent   at   blind   sidings 289 

private,   defined,   in   connection   with   demurrage 79a,    121,   222 

private,    repayment    by    carrier    of   cost    of    construction....        110 
Side  trips,  limited  to  holders  of  through  tickets,  must  be  author- 
ized   in    through    tariffs 148.    177 


IxDi:x  TO  Conference  Rulings.  979 

Ruling. 
Signals,   Commission   in\  estigates  condition  of.  only  in  case  of 

accidents     288 

SlGN.'\TURES  : 

of    railroad    officials    to    applications    for    special    reparation.        129 

to  released  valuation  clauses,  on  bills  of  lading 226 

Sleeping  c.-xrs,  privilege  of  occupying  cars  at  stopover  point  or 

destination  can   not  be  limited  to   particular   club .51 

Snovvplows,  locomotives  equipped  with 328 

Snows,  preventing  unloading,  tariff  rule  waiving  demurrage....        133 

Southbound   rate   can   not   be   used   northbound 52 

Special  docket.     Sec  Special  reparation;  Claims. 

Special  rates,  transportation   of  Federal  troops  under  orders..        218 

Special  reparation    (sec  also   Reparation): 

awarded  only  on  basis  of  rate  on  file  with  Commission....        251 
carrier  at  fault  pays  misrouting  and  later  establishes  lower 

rate   via   route   of   movement 205 

future    rate ;    fourth    section 376 

grain    doors,    allowances    for    furnishing   subsequently    pub- 
lished             132 

joint    rates    reduced    to    sum    of   local;    minimum    weight    in- 
creased              338 

orders    will    require    maintenance    of    rate 14,    220r,    396 

passenger  fares  reduced,  reparation   not  allowed  informally         46 
power    of    Commission     to    authorize     refunds;     rules    and 

principles    governing    200 

"reasonable   time"  defined   as   si.x  months 38 

reconsignment   or  transit   rules   not  given   retroactive   effect, 

6,    77,    166 

signatures   of  officials   to  applications   for ^2'^ 

through    rate    reduced    to    sum    of   locals    but    minimum    in- 
creased            282 

Special    understandings,    between    carrier    and    shipper,    not    in 

tariffs     20,    235 

Spur  track.     Sec  Sidetrack. 

Stage  lines,   no   passes   to   employees 95(7 

State.     See  Intrastate. 
State  commissions: 

no   control   over  demurrage   on   interstate   shipments 54,   223/; 

passes  not  to  be  used  for  interstate  journeys 35 

Statute  oe  limitations.     Sec  I.i.mitations. 
Statutouv    notice.     .V('('    .Xotice. 
Steam  : 

coal    for,    may    not    !>e    given    special    rate 34 

distinction    in    rates    on    traffic    liandled    by,    and    electricity, 

unlawful     ;. 

Stea.mship  companies.     See   Water   lines. 

Stevedores  acting  as   forwarding  agents   for   ship])ers :'.::7 

Stock-holding    kailroad.    no    free    carriage    between    owner    and 

owned    '•*,    225 


980  IXDKX    TO    CoXFKRKXCl-:    RULIXGS. 

Ruling. 
Stop-over    (sec    also    Tickets),    exceeded    bj'    passenger    because 

suhpoensed    as    witness 60 

refund    of    unused    portion    of    passenger    ticket 380 

Stoppage  in  transit.     See  Transit  privileged. 

Stopping  shipments  en  route  for  part  loading  or  unloading.  .233,  370 

Storage,    proceeds    of    sale    insufficient    to    cover    charges,    no 

waiver     145 

Storage  charges: 

accruing   at   warehouse   leased   from   shipper 403 

carrier  failing  to  forward  notice  to  consignee,  liable  for....  366 

misrouting    carrier,    liable    for 383 

on   baggage   refunded   to  passenger   injured   in   wreck 61 

refunded    on    account    of    weather    conditions 404 

vStorage  in  transit    (see  also   Transit  privileges),    free,    at   one 

point,    for   one   industry,   disapproval 5 

Storage  track,   private   car   out   of   service   on   carrier's,    demur- 
rage       123 

Street  railways  : 

intrastate,    carrying    interstate    express    matter 368 

subject    to   hours   of   service   law 56 

Strikes,   demurrage   occasioned   by   strikes,    no    refund 8 

Subsidiary  line  : 

passes  to  employee?  only  when  traveling  on   carrier's  busi- 
ness      95a 

posting  of  tariffs   for,   by  parent  line 86 

Substituting  tonnage  at   transit  point 85,   181,  203 

Sunday,   statutory   notice   of  tariff  expires   on,   lawful 47 

Supplements   to  tariefs,   canceling   rates,   must   be    specific   and 

complete     101 

Supplies,  furnished  railroad  employees  through  commissary  car.  257 

Supplies,    sold   by   contractors 413 

Surety   companies,    passes   to    employees,    none 95a 

Surgeons,  local,  not  regularly  employed,   no  passes   to  families, 

95rt.  426 

Aeterinary,    passes    for 449 

Su.spENSiON   of  tariffs  : 

discretionary    with    Commission    whether    to    suspend 322 

requests   for   suspension;   what   must   be   shown 322 

Swinging  side  doors,   safety   appliances 329 

Switching    charges,    absorption    of * 424 

Switching  and  switching  charges  (see  also  Terminal  delh'Ery)  : 

absorption    of,    to    competitive    point    only 304rf 

absorption    rule   published,    carrier   must    pay    terminal   line.  64 

carload  transferred    into   two   cars   in    transit 357 

charge  where  two  cars  furnished  in  lieu  of  car  ordered....  339 
demurrage    accrues,   belt    line   will   not    switch   until    freight 

charges    paid     144 


Index  to  Coxfkrence  Rulings.  981 

Switching  and  switching  charges — Continued.  Ruling, 

erroneous  placing  of  cars  for  loading;  analogous  to  astray 

movement    240 

less-than-carload    shipments,    free,    from    industries 97 

Switching   i.ine: 

concurrences     341 

municipal,    subject   to    act 89 

Switch  track.     See  Sidetrack. 

Systems,   railroad,    free   transportation   by   one    carrier   member 

for   another    9,   225 

Tailor  making  uniforms  for  railway  employees,  under  contract, 

passes    134 

Tank  cars.     See  Cars;   Private  car. 
T.^RIFFS  ; 

allowances  for  fitting  cars  for  shipments  must  be  published, 

19,    78,    132.    292 

allowances   for   grain   doors 78,   132,   267 

cancellation  of  transit  rules  does  not  withdraw  right  from 
shipments   moving   thereunder   until   expiration   of  transit 

limit    80 

cancellations   in,   must   be   complete   and   specific 101 

canceled,  accrued  claim  for  absorption  switching  not  invali- 
dated            13(i 

carrier   filing  another's   tariff   as   its   own,   without   securing 

concurrences    13 

carriers   filing   tariffs,   recognized   as   subject   to   act... 95g 

carrier,  participating  in  transportation  without  filing;  prose- 
cution      184,    194 

carrier    participating   in   misrouted   movement   without   pub- 
lished   rates '. 90.    93 

charity,    transportation    for,    without   tariffs 208£r 

classification   does   not   govern   tariff  unless   specified 141 

concurred    in,    do    not    authorize    carrier   to   use   local    rates 

of    publishing    road 281 

concurrences   of   switching   roads .341 

conflicts    in 50,    70,    104,    239 

demurrage  collected  under  tariff  not  on   file,  refund  denied.       194 
demurrage    published    in    separate    tariff   without    cross    ref- 
erence   270 

demurrage,   rules   waiving  must   be   affirmative   and   specific. 

13;-).   22.3 

destruction    of    canceled    tariffs    at    stations 252 

distance,  must  show  distances  between   freight  stations....        202 
distinction  between  traffic  handled  by  steam  and  electricity, 

unlawful    2 

distinguishing   between    coal    for    steam    and    domestic    pur- 
poses,   unlawful -I  • 

effective   date,   issued  before   August  28,   1900.   but   not   filed 

until    later    l<)(i 


982  Index  to  Conference  Rulings. 

Tarikks — Continued.  Ruling. 

eflfective   date,   none    illegal    (sec  Rule   73) 12 

effective   date,   omitted   in   carrier's   first   tariff,   effective   im- 
mediately      ~3 

error  in   stating  concurrence   number 347 

exceptions   in   section   22   not   applicable    to   mileage,   excur- 
sion   or    commutation    tickets 208^ 

explosives,    notice   of   regulations 106 

express   companies,    tariffs    providing   passes    for   caretakers 

of   fruit,   cross   reference   to   railroad   tariffs 179 

Government    rates   need   not   be    published ....  33.   36.   65,   208c,   244 
lessee  road  not  serving  public  as  carrier,  need  not  file  tariffs.       180 
lessee  road  operating  combined  lines  under  special  arrange- 
ment,    filing    rates 229 

lessor    companies    participating    in    service    must    concur    in 

tariffs     402 

meals  included   in  r?.te,  transportation   charge  must  also  be 

shown    separately    28 

mileage    books,    redemption    rules    in    tariffs 228 

newly   constructed   lines,   publication   on    short   notice 4 

order  by  Commission  requiring  rate  reduction:   carrier  may 

reduce   related   rates   on   short   notice 130 

performance  of  transportation   service  without  filing  tariff's, 

90.    93,    184,    194 
pri\ate    cars.    Commission's    definition    to    be    incorporated 

in    tariffs     128 

provisions    govern    even    where    in    conflict    with    conditions 

in    tickets 75 

published  on   short  notice  on  account  of  embargo  at   Mexi- 
can  ports    437 

reissue    of    canceled    rates 344 

remain    in    effect    until    specifically    canceled    or    superseded, 

50,    70,    104,    136.    239 
retroactive    effect    not    given    to    reconsignment    or    transit 

rules    6.    77,    166 

routing,  rule  reserving  right  of  routing  or  diverting 146,  183 

rule    applying    reshipping    rate    in    effect    date    grain    leaves 

transit   point    119 

shall  specify  to  what  countries  export  and  import  rates  are 

applicable     389 

should    show    in    addition    to    system    name,    the    corporate 

names   of   carriers   comprising   system 450 

side   trips  limited   to   holders   of  throug'h   tickets   must   be  in 

tariff     14S,     177 

subsidiary  line   need  not  post,   if  posted  by   parent  line....  86 

substitution  of  tonnage  in  transit,  rule  permitting,  unlawful.        181 

supplements  canceling  rates   must  be  specific 101 

suspension    of   ;i22 


Index  to  Coni-kri^nce  Rulings.  983 

Tariffs — Continued.                                                                                     n  i- 

terminal  charges   to  and   from   Canada  must   he   puhlished.  191 

unlawful  per  sc,  can   not  he  used -^^- 

Takiff  circular  No.  14-A: 

Rule    8,    cited .„ 

„    ,                                            oO 

Rule    44,    modified , 

Tariff  circular  Xo.  15-A: 

Rule    4,    amended ,q,; 

Rnle    7,    cited ^, 

Rule 

Rule   59,   same   as — .)qq 

2U 

Rule   63,   same   as   208 95  208 

Rule   (34,   same   as — 219 

Rule    65,    same    as — 212 

Rule    66,    same    as — 216 

Rule    67,    same    as — 207 

Rule    70,    same    as    214;    cited, 

113,    143,    167,    190.    192,    198,    205,  214 

Rule    72,    same    as — 215 

Rule    74,    same    as    217;    cited 31  217 

Rule    75,    same    as — 2is 

Rule   78,    same   as    Rule   67   of   17-A;   modified 114 

10 


le  8,  cited   (same  as   Rule  8  of  14-A) 50,   101 

le   59,   same   as — 

Rule    60,    same    as — 


Rule   79,   same   as — . 


Rule    80,    same   as — 211 

Rule    81,    same    as — 220 

Supplement    No.    2 135 

Tariff  circulars    17-A   or    18-A: 

Rule  4,  heing  amended   Rule  4  of  Circular   1.5-.^ 106 

Rule  5,  modified  and   cited 195 

Rule   7,   same   as   Rule   7,    Circular   15-.A.,   cited 84 

Rule  S,    same   as    Rule   8,    Circular   14-.^,    cited 50,    100.  101 

Rule    55,    cited 215 

Rule    56,    cited 220 

Rule    57,    as    modified 4 

Rule    61,    overruled 244 

Rule    65,    cited lOii 

Rule    66,    reafiirmed 339 

Rule  67,  heing  Rule  78,   Circular   1.5-A  as  amended,  cited..  114 

Rule    72,    interpreted 269 

Rule  75,  heing  amended  rule  in  .Suiiplement  No.  2  to  Circu- 
lar    1 5-.^ 1 35_  223 

TELKC.RAril    AM)   ca.n'ai.   compamks: 

commissions    407 

telegrams  and  cahlegrams ICO 

TklROraph    and  tki.ki'ho.nk   co.mi'aniks  : 

application   of  amended   act   to .tO.-, 

application  of  hours  of  service  law  to  operators 88,  287 

employees,  no  passes,  except  when  working  on  line..95(/,   161,  219 


984  Index  to  CoxfUrence  Rulixgs. 

Telegraph   and  telephone  companies — Continued.  Ruling. 

error  in   transmission  of  message,   no   damages 317 

exchange    of   services    with    railroads 364 

paragraph   5,   section   15   of  amended   act   not   applicable   to.  391 

transportation   of  men   and   materials   for 95a,   161,  219 

wireless    messages;   ships   at   sea 394 

Telegrams   to  or   from   shippers;   payment   of   charges   on, 

302,    327,    351,  363 

TELEPHONE    companies    in    Porto    Rico 420 

Terminal  charges   to  and   from   Canada  must   be   published....  191 

Terminal  companies: 

are   subject   to    the   act 312 

concurrences    of 341 

employees   of   restaurant   of,    no   passes 340 

Terminal    delivery    (sec    also    Delivery),    shipper's    instructions 

must   be    followed 214&,  321 

Territory.     Sec  Porto  Rico. 

Through  rates  applicable  on  rail  and  water  shipments 401 

Through  rates  or  fares  : 

combination  of  locals;  making  less;   special  reparation 220^ 

device   to   evade,   by   local   l)illing   and   rebilling 98 

device   to   evade,   by   sale   of  local   tickets 24 

device  to  evade,  by  sale  of  party  rate  and  local  single  tickets.  268 
in     excess     of     combination     on     important    basing    point; 

maintenance    200a 

joint   rates   reduced   to   sum   of  locals;   minimum   weight   in- 
creased      338 

may  not  he  higher  than   combination   of  intermediate   fares.  298 

minimum    weight    governing   joint    through    rate 264 

reduced  to   sum  of  locals  but   minimum   increased,   basis   of 

refund    282 

through    billing    over    rail-and-vvater    route    in    al)sence    of 

joint    rate     354 

to  or  from   Porto  Rican   ports  to  or  from   inland   points   in 

United   States,   legal 201 

transfer  of  shipment  to  another  car  in  transit 331 

Through  route: 

duty  of  carriers  to   furnish   through   cars  or  transfer  free..  59 
through  billing  over  rail-and-water  route  in  absence  of  joint 

rate    354 

Tickets  : 

agent's    error    in    fixing    time    limit 390 

application    of    section    4 310 

Canadian    immigration,    no    jurisdiction 24 

charterer  of  train   m.ay  sell,   at  special  rate 82 

child  under   12   years,   full-fare   ticket  purchased,   no   refund.  163 

colonist,  agent   fails   to  indorse,  selling  carrier's   loss 69,  277 

commutation.  State,  maj'  be  used  on  interstate  journey....  26 


IxDEx  TO  Conference  Rulings.  985 

Tickets — Continued.  Ruling. 

commutation   to   school    children,    nondiscriminatory 99 

conditions  on  ticket  conflicting  with  tariff  provisions,  latter 

govern     75 

connecting  line  entitled  to  compensation  for  class  of  ticket 

honored     69,    277 

entertainment  tickets   may  be  sold  by  carrier  as  matter  of 

convenience    221 

death  of  round-trip  ticket  holder  before  return  trip  made..  393 
discontinuance  of  journey  short  of  intended  destination....  350 
exchange  of  ticket  to  one  point  for  ticket  to  farther  distant 

point    30,'^ 

excursion,   redemption    of,   on   basis   of   intermediate   excur- 
sion   fare 265,    303 

extension  of  time  by  one  carrier  not  binding  on  others  (re- 
verses   Rule    23) 43 

fare  paid  under  misapprehension  of  privilege  offered  under 

throug-h     ticket 391 

furnished  in  lieu   of  others   lost 458 

honored   over   w^rong   line   through    error    of   conductor....        105 

lost,  refund  of  additional  fare  paid 238 

lost  by  carrier,  must  pay  connections  for  substituted  ticket.  247 
meals  may  be  included,  but  transportation   must  be  ofifered 

separately    28 

mileage   book    presented   in    part   payment 382 

mileage  not  good  in  newf  territory  unless  tariff  so  provides.       178 
mileage,   insufficient   coupons,   passenger   may   pay    for   bal- 
ance of  trip  at  regular  rate  per  mile 81 

party    rate,    may    not    b€    used    with    single    fares    to    defeat 

through    fares    268 

passenger  obeying  legal  process  exceeds   stop-over 60 

passenger  reaching  last  carrier  after  expiration  of,  must  pay 

local    fare     44 

sale  of,  after  departure  of  last  train  on  final  selling  date..       1S2 
side  trips  limited  to  holders  of  through  tickets  must  be  au- 
thorized in   through  tariffs 148,    177 

sold  at  lawful  fare  may  be  given  away  by  purchaser 154 

train  delays  cause  passenger  to  miss  connections,  invalidat- 
ing  ticket 27 

transfer   of   passengers    by   bus    at    destination    may    l)e    in- 
cluded.  l)ut   transportation   must   be   offered   separately...        164 
unused    in    part    liecause    of   washout;    refund    of   additional 

fare    paid    Hfi 

unused  portion,  invalidated  l)y  agent's  error;   refund  of  ad- 
ditional   fare    266.    390 

unused  portions,  value  refunded  by  carrier 76,  115,  238,  380 

unused  portion  of  excursion   ticket;   refund  on  basis  of  an- 
other   excursion    rate    from    internu-diatc    stop-nvcr    i)oint, 

265.   303 


986  Index  to  Conkkricnci-:  Rulings. 

Tickets— C()H/z;n/('(/.  Rulinj,^ 

validation  of,  failure  of  passenger  to  secure,  tarif?  rule  may 

permit     refund     125 

validation   of ''5.    1*^~ 

Tie    Inspector  ;    pass 3SC) 

Time  LIMIT'  ON  tickets.     Sec  Tickets. 

Ton,   gross,  long,   and   net,   defined 1-51 

ToNN.^GE,   substitution    of,  at    transit    point 85,    181,   203 

Track.\('.e  rights  : 

lease  by  one  carrier  to  another,  device  to  avoid  charges....        153 
shipments    routed    over    lessor   road    Init    handled    by   lessee 

road:   same   delivery;   no   misrouting 168 

Traction   company,   located   wholly   within   a   state,   carrying   in- 
terstate   express    matter 368 

Trade  name,  application  of  rate  to  commodity  sold  under 279 

Traffic,  purchase  of  an  industry's,  by   carrier,  through  lease  of 

property    94 

Traffic  bureau,  filing  reparation  complaints;  orders  in  favor  of 

shipper     246 

Train: 

chartered   at  published   rate  per   car  or  per   train,   charterer 

sells  tickets  at  special  fare 82 

delayed,  causing  passenger  to  miss  connections,  invalidating 

ticket     27 

freight,   privilege   of   riding   on,    can   not    be   limited    to    one 

class     45 

service.   Commission    can   not   require   additional 296 

Train   employees,   application   of  hours   of  service   law   to, 

88.    275.    287,    342 
Transfer  : 

carriers  in  through  route  must  transfer  free  if  through  cars 

no't    furnished    59 

of  shipment  from  one  to  two  cars,  demurrage  only   on  one 

car     250(7,    273 

of   shipment    in    transit 273,    274,    331,    339,    357 

Transfer  company,   carrier    may    make    exclusive   arrangement 

with,  but  charges  must  be  published  separately 164 

passes,   none   to   employees 95(;,   216 

Transit  privileges: 

additional  charges   resulting  from   shipper's  error 348 

charges   where   two   small   cars  are   furnished   in   lieu   of  car 

ordered    339 

eighteen  months  for  creosoting  of  lumlier.  not  excessive...        232 

fabrication   of   structural   steel 348 

feeding   and    grazing 442 

feeding   in    transit,    and    sale    of    feed 17 

if  not  availed  of  within  time   limited   in   tariffs,   can   not   be 

revived  or   renewed 53 


Index  to  Conference  Rulings.  987 

Transit   privilEC.es — ■Coiitiiuicd.  Ruling. 

inct)nsistent   instructions    followed   resulting  in   loss   of 370 

loss  through   misrouting  by   intermediate  line 230 

rates  applicable  when  shipments  stopped  short  of  intended 

destination    350 

rates   applying   out    of   transit   points   as   of   date   grain   left 

point   of  origin 119 

retroactive   effect   not  given   to fi,   77,  166 

sheep,  movement  of,  prevented  by  snow,   lose  transit   rates.  53 

should  not  extend  beyond  one  year 204 

storage,  free,  at  one  point  for  one  industry;  disapproved..  5 

substitution   of  tonnage  at   transit  point 85.   181,  203 

traffic    moving    into    concentration    point    retains    privileges 

until   expiration   of  limit   regardless   of  cancellation 80 

Transmission  of  messages  by  telephone  or  telegraph,  interstate.  305 
Transportation    (sec   also    Free   transportation)  : 

carrier  engaging  in,   wit'hout  published  rates 184.  194 

from  nonadjacent  foreign  country  through  United  States  to 

adjacent    foreign    country 294 

meals  may  be  furnished,  but  must  be  offered  separately....  28 
Traveling   secretaries.    Young   Women's    Christian   Association, 

no    passes    278 

Troops,  Federal,  transportation  of,  under  orders 218 

Trucks  destroyed  on  foreign  line,  return  free  to  road  owning..  224 

Trunks.     Sec  Baggage. 

Two  cars  for  one.     Sec  Cars. 

Undercharges  : 

arising  out  of  misquotation   of  Canadian   rate,  must   be  col- 
lected     262 

carriers  must  exhaust  legal  remedies  in  collection 3.   187,  314 

Commission  does  not  determine  who  is  liable  to  pay 314 

delivering  carrier  must  collect;  cost  of  collection  borne  by 

carrier   at   fault ^*>.  l'"'*' 

offsetting  of  under  or  over  charges,  no  jurisdiction 323 

relief  of  agent  does  not  relieve  carrier  from   collecting 151 

set-off  against  overcharges,  by  carrier 48,   133,  323 

waiver  of,  authorized  only  on  prompt  application   to   Com- 
mission      258.    432,  472 

UndeRSTaniiin'CS,    special    between    carrier    and    shipper,    not    in 

tariffs    20.  235 

Uniform   hill  of  l.\i)ing  (see  also  Bill  oi'  lading): 

carrier  should  advise  shipper  of  higher  rates  applying  when 

not  used  •  •  •  •  '  •'" 

measure   of  damages   under;   value   of  Inst   i)ro])crty 387 

Uniform  demtrragk  code: 

indorsed  l)y  Commission    242 

interpretation    and    explanation :"'13 

Uniforms,   passes  tf)   makers  of.   under  contract 13  1 


988  IXDEX    TO    COXFERKXCI-:    RULIXGS. 

Ruling-. 

Union  Station:  no  passes  to  restaurant  employees 340 

Unloading  : 

part,  in   transit,  and   substitution  of  tonnage,   unlawful 181 

part  of  shipment  at  intermediate  point,  legal   under  tari^s.  2.33 

prevented  by  weather,  tariff  rule  waiving  demurrage 135 

Unpublished  rate  not  a  basis   for  reparation 251 

Unused  portion  of  ticket: 

excursion,   on   basis   of   intermediate   excursion    fare 265,  303 

invalidated   by  agent's   error 266,  390 

refund  of  value  by  carrier..  ..76,  115,  116,  238,  265.  266,  303,  380,  393 

Use,  carrier  may  not  dictate  use  to  which   shipment  is  put....  34 

Validation  of  tickets  : 

conditions  in  tariff  must  be  observed;  at  points  other  than 

destination    75 

error  of  agent,  tickets  not  properly  validated,  refund 167 

failure  of  passenger  to  secure,  tariff  rule  may  permit  refund.  125 

^'ALUATION  : 

bonds,   falsely  declared   by   consignor 53 

clause,  signature  to,  on  bill  of  lading 226 

declared   b}^    consignor's    agent;    charges   must   be    collected 

on   basis   of 188 

of   lost   goods   under   uniform    bill   of   lading 387 

rates    based    on 295 

\'endor  or  vendee,   f.   o.   b.   shipment,   liability   for   demurrage   at 

point    of   origin 96 

Waiters   may  be  carried   free   on   private   cars 301 

Waiver  OF  undercharge  authorized  only  on  prompt  application..        258 
Washol'T  (see  also  Diversion)    preventing  passenger  from  com- 
pleting journey  under  ticket,   refund  additional   fare  paid.       116 

Water  carriers   controlled   by   other   carriers 461 

Water  lines  : 

advancing  charges  to.  when   not   common  carrier,  unlawful.         62 
canal  boats,  subject  to  act  if  through  arrangement  with  rail 

line    241 

interchange   of   railroad   passes   for   employees   of 95g.    196 

joint  rate  with  rail  carrier  subjects  traffic  to  jurisdiction...  66 

through  billing  over  rail  and  water  lines  in  absence  of  joint 

rate     354 

Water   transportation  : 

coastwise   and   export   business    defined 353 

port  to  port,  in  connection  with  inland  rail  haul,  subject  to 

act     155 

joint   rates   to   and   from    Porto    Rican    ports    legal 201 

Weather,   inclement,   preventing  unloading,   tariff   rule   waiving 

demurrage    135 

Weighing  bureau  of  carrier,   pass   to  employee   of 371 

Weight.     (See  Minimum  weight:  Fictitious  weight;  Estimated 
weight.) 


Index  to  Coxfkrexce  Rulixgs.  989 

Ruling. 

Westbound;  westbound  rate  can  not  be  used  eastbound 52 

Widow  of  employee.     (Sec  Family.) 

WiREr,ESS  COMPANIES,  passes  for _^^q 

Wireless  messages,   ships   at   sea 394 

Witnesses,   passes   to 3 ^g 

Wreck  : 


diversion   of  traffic   account   of;   adjustment   of   charges   be- 


tween   earners 


213 


passenger  injured  in,  storage  charges  on  baggage  refunded.         61 
Young  Men's  Christian  Association,  Railway,  free  carriage  of 

library   books    ']  33q 

Young  Women's  Christian  Association,  traveling  secretaries  of, 

no    passes    073 


GENERAL  INDEX. 


[References   are   to   pages.] 

A 

ACCIDENTS. 

Carriers   must   make   report   of,  744,   74.j. 

ACCOUNTING. 

Power    of    Interstate    Commerce    Commission    to    require    of    car- 
riers, 47,  48,  623,   624. 
Power  of  states  to  require,  48. 

ACCOUNTS. 

Carriers  must  keep  according  to  method  prescril)ed   by   Interstate 

Commerce   Commission,   47,  48,   62o,   624. 
Provision   for  keeping  constitutional,   48,   11!). 

ACT   OF   GOD. 

Relieves   from   hours  of  service  act,  44;i,  7.")0. 

ACTION  FOR  DAMAGES. 

Award  of,  how  made,  427,  428,  596. 

Complaint  to  Commission  or  suit  in  court,  ;;:;(),  42"J,  548. 

Enforceriient  of  Commission's  award  of  damages,  404.  427,  604. 

Government  aided  lines,  664. 

Initial  carrier.  405,   626. 

Parties  and  procedure,  430,  604. 

ACT  TO  PREVENT  CRUELTY  TO  ANIMALS. 
Known  as  the  twenty-eight  hour  law.  435,  672. 
Sec.    1,    Time    for     feeding     and     unloading     animals     prescril)ed. 

672-675. 
Sec.    1,    Time    may    l)e    extended    upon    written    request    of    owner, 

672. 
Sec.  1,  Sheep  need  not  l)e  unloaded  in  night  time,  673. 
Sec.  2,  Feeding,  at  expense  of  owner,  675. 
Sec.  2,  Carrier  a  lien  for  feed,  ()75. 
Sec.  '■>,   Penalties  for  vicjlating,  675,  67(i. 
Sec.   3,   Not   apply   when   animals   have   proper   feed   and   o])i)ortu- 

nity   to   rest.   676. 
Sec.  .i,   Penalty  for  eacii  slii])nuiit,  ()76. 
Sec.  3.  Suit  for  penalty  a  civil  action,  676. 
Sec.  3,  "Knowingly  and  willfully"  defined,  674,  676. 
Act    constitutional.   67.3. 


992  General  Index. 

[References   are   to   pages.] 

ACT  TO  REGULATE  COMMERCE. 

Alaska  within  provisions  of,  131,  457. 

Annotated,  446-671. 

Baggage  companies  not  subject,  460. 

Canada,  rates  in,  131,  454,  543. 

Carriers'   duties  under,   124,   125. 

Constitutional,   116,  117,  118,  119,  452. 

Courts  of  United  States  may  enforce  by  mandamus,  138,  411,  636. 

Cumulative  and  not  exclusive  of  preexisting  remedies,  634,  635. 

Discrimination,   what  illegal,  234-309,  479-504. 

Intrastate   commerce   excepted   from,   127,  452,  458. 

Modeled  on  English  act,  232,  233,  479,  488,  489,  505. 

Not  controlling  of  local  rates  in  Canada  though  such  rates  col- 
lected as  part  of  charge  for  through  movement,  131,  454, 
543. 

Open  gateway,  policy  of,  126,  502. 

Penalties  for  violation  of,  136,  559-564,  666. 

Preferences,  what  prohibited,  245-250,  488-501. 

Purpose  of  to  promote  trade,  166,  167,  499. 

Purpose  to  secure  equality  of  rates.  ]21,  126,  234,  235,  305,  502. 

Reasons   for,   120,   121. 

Scope  of,  14,  43,  126,  127,  451. 

Wagon   transportation   not  included,   454,  483. 

What  carriers  included  under,  122,  123,  132,  451,  454,  458. 

What  transportation  included  under,  126,  127,  128,  451. 

ACT  TO  REGULATE  COMMERCE  ANNOTATED. 

Sec.   1,   par.   1,   Scope   of  act,   451-458. 

Sec.  1,  par.  1,  Proviso  to,  not  applicable  to  intrastate  commerce, 
458.   459. 

Sec.    1,   par.   2,    Definitions,    459-461. 

Sec.  1,  par.  2,  continued.  Duty  of  carriers  to  furnisli  transporta- 
tion  and   establish   through   routes,   461-463. 

Sec.   1,  par.  2,   Charges   must  be   reasonable,   463-471. 

Sec.  1,  par.  3,  continued,  Classification  of  telegraph  and  telephone 
companies,   471,   472. 

Sec.  1,  par.  4,  Classifications,  regulations  and  practices  must  be 
reasonable,  472. 

Sec.  1,  par.  4,  Free  service,  472-476. 

Sec.  1,  par.  5,  Commodities  clause,  476-479. 

Sec.  1,  par.  6,   Switch  connections,  477-479. 

Sec.  2,  Unjust  discrimination  defined  and  prohibited,  479,  488. 

Sec.  3,  par.  1,  Undue  and  unreasonable  preference  prohibited, 
488-501. 

Sec.  3,  par.  2,  Reasonable  and  equal  facilities  for  interchange  of 
traffic  required,  501-504. 

Sec.  4.  par.   1,   Long  and   short   haul   clause,  504-513. 


Gene:ral,  Indkx.  993 

[References   are   to  pages.] 

ACT  TO   REGULATE  COMMERCE  ANNOTATED— CoH/m»^rf. 
Sec.  4,  par.   1,   continued,  Aggregate   rates   not   to   exceed  sum   of 

locals,  504-513. 
Sec.  4,  par.  1,  continued,  Relief  from  long  and  short  liaul   clause, 

513. 
Sec.  4,  par.  1,  continued.  Section  not  to  apply  for  six  months,  513. 
Sec.  4,  par.  2,  Rates  reduced  by  water  competition  not  to  be  ad- 
vanced   except    for    reasons    other    than    elimination    of    such 

competition,  513,  514. 
Sec.  5,  Pooling  freights  prohibited,  514-516. 
Sec.   5,   par.   2,   Rail   carrier  not  to  own   competing  water   carrier, 

516. 
Sec.  5,  par.  3,  Existence  of  competition  to  be   determined  by  the 

Commission,    516-518. 
Sec.  5,  par.  4,   Relief  from  provision  may  be  granted,  518-519. 
Sec.  5,  par.  4,  continued.  Water  carriers  to  file  tariffs,   519. 
Sec.    5,   par.   5,    Violators   of   Anti-Trust   Act    not   to   use    Panama 

Canal,  519. 
Sec.  6,  par.  1,  Schedules  of  rates  to  be  filed,  519-526. 
Sec.  6,  par.  2,  Regulations  as  to  printing  and  filing  tariffs  of  rates 

through  .foreign  countries,  526. 
Sec.  6,  par.  3,  Changes  in  tariffs  must  not  lie  made  without  notice, 

526-527. 
Sec.  6,  par.  4,  Names  of  parties  to  tariffs  must  be  given,  527. 
Sec.  6,  par.  5,  Contracts  must  be  filed,  528. 

Sec.  6,  par.  6,  Commission  may  prescribe  form  of  schedules,  528. 
Sec.    6,    par.    7,    Carriers    shall    not    participate    in    transportation 

without  filing  schedules  of  rates,  528-535. 
Sec.  6,  par.  8,   Military  traffic,  535. 

Sec.  6,  par.  9,  Commission  may  reject  schedules  of  rates,  536. 
Sec.  6,  par.   ]0,   Penalties  for  violating  orders   made  .under  sec.  6, 

536. 
Sec.  6,  par.  11,  Penalty  for  misstating  a  rate,  536. 
Sec.  6,  par.  12,  Carriers  must  post  name  of  agent,  536-537. 
Par.   1,   Sec.   1,   Elkins  Act.     Corporations  may  be   guilty  as   indi- 
viduals, 537-538. 
Par.   1,   Sec.   1,   Elkins  Act,   continued.     Punishment    for   rebating, 

538-543. 
Par.  2,  Sec.  2,  Elkins  Act.     When  agent  binds  carrier,  54;i. 
Par.  2,  Sec.  2,  Elkins  Act,  continued.     Carrier  bound   l)y  rate  liled 

or  participated  in  by  it,  54;5. 
Amendment  to  section   1,  Elkins  Act.     Forfeiture,  543,  544. 
Sec.  6,  par.  13,  Jurisdiction  over  water  carriers,  544-545. 
Sec.   6,   pars.    14,    15,    Physical    connection    belwceii    rail    and    water 

carriers,  545. 
Sec.   6,   par.   16,   Through   routes   between   rail   and   water   carriers, 

546. 

—32 


994  General  Index. 

[References   are   to   pages.] 

ACT  TO   REGULATE  COMMERCE  ANNOTATED— Co»/mMr(/. 

Sec.    6,   par.    17,    Proportional   rates    to   and    from   ports,    54G. 

Sec.  6,  par.  18.  Through  routes  via  Panama  Canal,  546. 

Sec.  6,  par.  19,  Enforcement  of  provisions  of  section  6  as 
amended  by  Panama  Canal  Act,  546,  547. 

Sec.  7,  Illegal  to  combine  or  contract  to  prevent  continuous  car- 
riage. 547. 

Sec.  8,  Damages  for  violating  act,  547-559. 

Sec.  9,  Damages,  how  recovered,  548-559. 

Sec.  10,  par.  1,  Penalties  for  violating  act,  559-561. 

Sec.  10,  par.  2,  Penalties  for  false  billing,  classification  and  weigh- 
ing, 561. 

Sec.  10,  par.  3,  Penalties  against  shipper,  561,  562. 

Sec.  10,  par.  4,  Penalties  for  inducing  discrimination,  563,  564. 

Sec.  11,  Appointment  and  terms  of  commissioners,  564. 

Sec.  12,  pars.  1  and  2,  Powers  and  duties  of  commission,  565-568. 

Sec.  12,  par.  3,  Punishment  of  witnesses  for  failing  to  testify,  569. 

Sec.  12,  par.  4.  Testimony  may  be  taken  by  depositions,  569,  570. 

Sec.  13,  par.  1,  Who  may  file  complaints  before  Commission,  571- 
575. 

Sec.  13,  par.  2,  Commission  may  initiate  investigations,   575. 

Sec.   14,   Reports   of  commissioners,  576,  577. 

Sec.  15,  par.  1,  Power  to  prescribe  rates,  rules  and  practices,  578- 
583. 

Sec.  15,  par.  1,  continued,  When  orders  of  commission  take  effect 
and   how   long  remain   in   force,   583,   584. 

Sec.  15,  par.  1,  continued,  May  fix-  division  of  joint  rate,  584,  585. 

Sec.  15,  par.  2,  Power  to  suspend  increased  rates,  585-587. 

Sec.  15,  par.  2,  continued.  Burden  of  proof  when  rates  increased, 
587-589. 

Sec.  15,  par.  2,  continued.  Through  routes  and  joint  rates,  589- 
591. 

Sec.  15,  par.  3,  Limitations  on  power  to  establish  through  routes, 
591,  592. 

Sec.  15,  par.  4,  Shippers  may  designate  routing,  592,  593. 

Sec.  15,  par.  5.  Unlawful  to  give  information  relating  to  ship- 
ments,   593,    594. 

Sec.  15,  par.  3,  Charges  for  instrumentalities  furnished  by  ship- 
per, 594,  595. 

Sec.   15.   par.  4,   Enumeration   of  powers   not   exclusive,  596. 

Sec.  16,  par.  1.  Award  of  damages,  how  made  by  commission, 
596-604. 

Sec.  16,  par.  2,  Award  of  damages,  how  enforced,  604-606. 

Sec.  16,  par.  2,  continued,  Limitation  on  actions  for  damages,  606. 

Sec.  16,  par.  3,  Parties  to  suits  on  awards  of  damages,  608. 

Sec.  16,  par.  5,  Commission  may  suspend  or  modify  its  orders, 
608. 


General  Index.  995 

[References  are  to  pages.] 

ACT  TO  REGULATE  COMMERCE  ANNOTATED— Con^nm^i. 

Sec.  16,  pars.  6,  7,  8  and  9,  Punishment  for  disobedience  to  orders 
of   commission,   608,   609. 

Sec.  16,  par.  10,  Who  to  prosecute  for  violation  of  orders,  609. 

Sec.  16,  par.  11,  Courts  may  enforce  obedience  to  orders  of  com- 
mission, 610. 

Sec.  16,  last  par.,  Schedules,  etc.,  evidence,  611. 

Sec.  16-a,  Rehearings  by  the  commission,  611-613. 

Sec.  17,  Procedure  in  causes  before  the  commission,  613. 

Sec.  18,  Salaries  and  expenses  of  the  commission,  613,  614. 

Sec.  19,   Principal  office  of  the  commission,  614. 

Sec.  19-a,  pars.  1  to  6,  Commission  authorized  to  value  railroad 
property,  615,  616. 

Sec.  19-a,  par.  7,  Method  of  procedure  in  valuing  railroad  prop- 
erty, 616. 

Sec.  19-a,  par.  8,  Prosecution   of  work  of  valuation,  617. 

Sec.  19-a,  par.  9,  Duty  of  carriers  with  respect  to  valuation,  617. 

Sec.  19-a,  par.  10,  Revision  and  extension  of  valuation.  617. 

Sec.  19-a,  par.  11,  Reports  of  carriers  relating  to,  617. 

Sec.  19-a,  par.  12,  Notice  of  completion  of,  618. 

Sec.  19-a,  par.  13,  Hearings  before  valuation  fixed,  618. 

Sec.  19-a,  par.  14,  Efifect  of  valuation  as  evidence,  618. 

Sec.  19-a,  par.  15,  Valuation  act  applies  to  receivers — penalties 
for  violating,   619. 

Sec.  19-a,  par.  16,  Jurisdiction  of  courts  relating  to  valuation  of 
railroads,  619. 

Sec.  19-a,  last  par.,  Transportation  to  employees  of  Interstate 
Commerce  Commission,  619-620. 

Sec.  20,  pars.  1  to  4,  Reports  to  be  made  by  carriers  and  what 
they  shall  contain,  620-623. 

Sec.  20,  par.  5,  Form  of  keeping  carriers'  accounts,  623-624. 

Sec.  20,  pars.  6  and  7,  Penalties  for  failure  to  keep  proper  ac- 
counts, 624. 

Sec.  20.  last  part  par.  7,  Destruction  of  records  may  l)e  permitted, 
625. 

Sec.  20,  par.  8,  Penalty  for  an  examiner  divulging  information 
received  as  such,  625. 

Sec.  20,  par.  9,  Who  may  enforce  these  provisions.  625,  626. 

Sec.  20,  par.  10,  Commission  may  employ  agents  or  examiners, 
626. 

Sec.  20,  pars.  11  and  12,  Initial  carrier  lialilc  for  loss  caused  by 
connecting  carriers,  as  well  as  for  that  caused  by  itself,  626, 
627,  628. 

Sec.  20,  Cummins  amendment  to,  629,  630. 

Sec.  21,  Reports  by  commission  to  Congress,  631. 

Sec.  22,  par.   1,  Reduced  or  free  transportation,  631-633. 

Sec.  22,  par.  2,  existing  remedies  not  altered  or  abridged,  <'>.!l, 
635. 


996  General  Index. 

[References   are   to   pages.] 

ACT  TO   REGULATE  COMMERCE  ANNOTATED— Cou/mwe^. 

Sec.   33,    Proviso,    Interchangeable    mileage   tickets,    635. 

Sec.  23,   Discrimination,  how  prevented,  636,  637. 

Sec.  24,   Number,  term,   salary,   etc.,  of  commissioners,  638. 

Sec.  9,  Hepburn  Act,  Testimony  laws  remain  applicable  to 
amended  act,  639. 

Sec.  10,  Hepburn  Act,  Repealing  clause,  639. 

Joint  Resolution  of  Congress,  Effective  date  Hepburn  Act,  639. 

Sec.  6,  par.  3,  Act  1910,  Carrier's  agents  in  Washington,  640. 

Sec.  15,  Act  1910,   Not  to  affect  pending  cases,  640. 

Sec.  16,  Act  1910,  Commission  to  investigate  questions  pertain- 
ing to  issuance  of  stocks  and  bonds,  641. 

Sec.  17,  Act  1910,  Injunctions  against  State  statutes,  641,  642. 

Sec.  18,  Act  1910,  Effective  date  of  Act,  643. 

Sec.  2,  Elkins  Act,  Parties,  643,  644. 

Sec.  3,  Elkins  Act,  part  1,  Equitable  proceedings  to  prevent  dis- 
crimination, 644,  645. 

Sec.  3,  Elkins  Act,  part  3,  Immunity  of  witnesses  testifying,  645, 
646. 

Sec.  3,   Elkins  Act,  part  3.   Suits  to  be  expedited,   646. 

Sees.  4  and  5,  Elkins  Act,  Effect  of  repealing  clause,  646. 

Sees.  1  to  6,  Act  1910,  Commerce  Court.  647-655. 

Provision  Appropriation  Act,  Oct.  22,  1913,  par.  1,  Commerce 
Court  abolished.     655-656. 

Provision  Appropriation  Act,  par.  3,  Venue  of  suits  to  set  aside 
order  of  Interstate   Commerce   Commission,  656. 

Provision  Appropriation  Act,  par.  3,  Procedure  in  District 
Courts,  657. 

Provision  Appropriation  Act,  2d  part  par.  3,  Temporary  restrain- 
ing orders,  658. 

Provision  Appropriation  Act,  3d  part  par.  3,  Appeals  from  inter- 
locutory orders,  659. 

Provision  Appropriation  Act,  4th  part  par.  3,  Appeals  from  final 
judgments,  660. 

Provision  Appropriation  Act,  last  part.  Pending  causes  in  Com- 
merce Court  transferred,  660,  661. 

Act  1910,  amending  Sec.  1,  Expediting  Act.     661-663. 

Expediting  Act,  Sec.  2,  Direct  appeal  to  Supreme  Court,  663. 

Sec.  1,  Act  August,  1888,  Government  aided  railroad  and  tele- 
graph lines,  664. 

Sec.  2,  Act  August,  1888,  Connecting  telegraph  lines,  664. 

Sec.  3,  Act  August,  1888,  Duty  of  Interstate  Commerce  Com- 
mission under,  665. 

Sec.  4,  Act  August,  1888,  Duty  of  Attorney  General  under,  665. 

Sec.  5,  Act  August,   1888,  Penalties,  666. 

Sec.  6,  Act  August,  1888,  Duty  of  carriers  to  file  contracts  and 
make   reports,   667. 

Sec.  7,  Act  Aug.  1888,  Right  to  amend  reserved,  668. 


General  Index.  997 

[References  are  to  pages.] 

ACT  TO  REGULATE  COMMERCE  ANNOTATKD— Continued. 
Act  June  30,  1906,  Lake   Erie  &  Ohio  River  Canal  Act,  668. 
Act  August  24,  1912,  Parcel  post,  669. 

Act    Feb.   11,   1893,   Compulsory  attendance   of  witnesses,   669. 
Act  June  30,  1906,  Amendment  to  act  for  compulsory  attendance 
of  witnesses,  670. 

ACTS  OF  CONGRESS. 

Indirectly   aflecting  interstate   commerce,  435-455. 

ADJACENT  FOREIGN  COUNTRY. 
Transportation   to  and   from,   451. 

ADVANCE  IN  RATES. 

Burden  on  carrier  to  justify,  587. 

Commission  may  suspend,  585. 

Due  to  elimination  of  water  competition,  513. 

AGENT. 

Act  binds  corporation,  when,  543. 
In  Washington,  640. 

AGREEMENTS  TO  MAINTAIN  RATES. 
Effect  of,  183. 

ALASKA. 

Rates  in.  subject  to  Act   to  regulate   commerce,   131.  457. 

ALLOWANCES. 

Industries'    tracks,   284,    314,    315,    320,    321,    594. 

Legal    for    instrumentalities    or    services    furnished.    320,   359,    594, 

595. 
Must    be    reasonable    and    non-discriminatory,    315,    320,    321,    594, 

595. 
Sometimes   called   divisions,  283,  284,  316. 
To  elevators,  280,  500. 
To  tap  lines,  283,  284,  315,  321,  595. 
To  shippers,   320,  594,   595. 
AMENDMENTS. 

To    complaints    before    Interstate    Commerce     Commission,     394, 

559. 

AMERICAN  RAILWAY  ASSOCIATION. 

To  designate  height  of  drawbars,  737,  738,  741. 

ANIMALS,   LAW  TO   PREVENT  CRUELTY  TO. 
Act  constitutional,  673. 
Carrier  given  a  lien  for  feed,  675. 
Feeding  at  owner's  expense,  675. 

"Knowingly  and  wilfully"  used  in  act  defined,  674,  676. 
Law  prior  to  1906,  673. 

May,  by  written  request  of  owner,  extend  time  to  36  liours,  672, 
673,  674. 


998  General  Index. 

[References   are   to  pages.] 

ANIMALS,  LAW  TO  PREVENT  CRUELTY  TO— Continued. 

Not   apply   where   animals   have   proper   food   and   opportunity   to 

rest,  676. 
Not  to  be  confined  while  being  transported  longer  than  28  hours, 

672. 
Penalty  for  each  shipment,  676. 
Penalties  for  violating,  675,  676. 
Penalties,  suit  for  a  civil  action,  676. 
Sheep  need  not  be  unloaded  at  night,  673. 

ANTI-TRUST  LAW. 

Act  1894,  amended  b.y  Act   1913.  702,  703,  704. 

Allegations,   what   required   in   suit   for  damages,   701. 

Annotated,  680-723. 

Applies  to  carriers,  437,  438. 

Attorneys'  fees  as  part  of  recovery  in  suits  for  damages,  699. 

Clayton  Act,  purpose  of,  439. 

Clayton  amendment,  final  judgment  in  prosecutions  or  proceed- 
ings in  equity  under,  prima  facie  binding  in  subsequent  suits, 
706,  707. 

Competitive  bids  required,  when,  711,  712. 

Contempt  of  court,  proceedings  relating  to,  719-722. 

Damages  for  violating,  measure  of,  698,  699,  706. 

Directors,  when  not  to  serve  in  different  corporations,  708,  709. 

District  Court  jurisdiction  to  grant  injunctions,  695. 

Discrimination  in  prices  prohibited,  705;   706. 

Efifect  of  amendment  granting  Interstate  Commerce  Commission 
right  to  suspend  rates  on  consideration  given  by  Commission 
to  violation  of,  by  a  carrier,  170,  680. 

Enjoin  violations  of,  courts  may,  695. 

Exclusive  contract  between  telephone  companies  legal,  438,  439. 

Federal  Reserve  Board,  duties  under,  712. 

Federal  Trade  Commission  act  not  to  affect,  712. 

Federal   Trade   Commission,   duties   under,   712. 

Final  judgment  in  prosecutions  and  government  suits  under  Clay- 
ton amendment  prima  facie  binding  in  subsequent  suits,  706, 
707. 

Good  will,  sale  of,  valid,  686,  689. 

Guilt  of  corporation  prima  facie  evidence  of  guilt  of  officer,  715. 

Injunctions  under,  716,  717,  718,  719. 

Inter-corporate   relations   illegal,   707. 

Interstate  Commerce  Commission,  duty  to  enforce  certain  pro- 
visions, 712. 

Interstate  Commerce  Commission  no  power  to  enforce,  when, 
165,  167,  467,   680. 

Jury  trial,  when  may  be  demanded,  720,  721. 

Known  as  "Sherman  Anti-Trust  Law,"  169. 

Labor   disputes   not   enjoined,   when,   707. 


General  Index.  999 

[References   are   to   pages.] 

ANTI-TRUST  "LKW—Contimicd. 

Labor  organizations  not  prohibited.  707. 

Limitation,    laws    of    State    where    suit    filed    applies    to    suits    for 

damages,  701. 
Monopolies   prohibited.   693. 
Officers  punishable,  710. 
Parties  to  suits  for  violating.  716. 
Patented  articles,  sale  of,  regulated,  705,  706. 
Penalties  for  violating,  680. 
"Person"  includes  corporation,  702. 
Philippine  Islands  Act  not  to  apply  to,  705. 
Private  persons  may  obtain  injunctive  relief,  716. 
Prohibition  ol  resale  prices,  when,  686,  687,  689,  692,  705,  706. 
Property  seized  and  forfeited,  when,  698. 
Punishment  of  corporate  officers,  710,  715. 
Resale  price   fixing  illegal,  686,  687,   689,  692,   705,  706. 
Restraining  orders,  procedure,   697. 
Rule  of  reason  applied,  691. 

Subpoenas  may  be  served  on  parties  in   any   district,  715. 
Territories,  law  applies  to,  694. 
Trial  by  jury,  720. 
Venue  of  suits  under,  715. 
Violation  of,  considered  in  determining  whether  or  not  a  rate  is 

reasonable,  165-170,  467,  680. 
Violators  of  not  to  use  Panama  Canal,  519. 
What   combinations  included   in   prohibition   of,   080. 
Witnesses    may    be    required    to    attend    court    in    districts    other 

than  their  residence,  715. 

APPEALS. 

Direct  to  Supreme  Court  in  suits  to  enjoin  or  set  aside  order  of 

commission,  433,  660,  663. 
Do  not  suspend  order  appealed  from,  433,  652. 
Given  priority  of  hearing  in   Supreme  Court,  433,  652. 
May   be    taken    direct    to    Supreme    Court    from    any   action    on    a 

petition    to   enforce    obedience   to   order   of   commission,   433, 

663. 
May  be  taken  from  an  interlocutory  order  granting  or  continuing 

an  injunction,  433,  659. 
Must  be  taken  within  thirty  days,  433,  659. 
Original  record  may  be  sent  to  Supreme  Court,  433. 
Sixty  days  to  appeal  from  final  judgment,  .433.  660.  663. 

ARBITRATION  ACT. 

Appeal  may  be  taken  to  Circuit  Court  of  Appeals,  772. 

Applies  to  what  controversies.  767. 

Arbitrators  may  administer  oaths.  769. 

Award,  how  certified,  771. 

Board  of  arbitration,  liow  chosen.  768. 


1000  Generai,  Index. 

[References   are   to   pages.] 

ARBITRATION   ACT— Continued. 

Board  of  mediation  under,  767,  768,  770,  771,  773. 

Compensation  of  board  of  arbitrators,  772. 

Copied,  766-774. 

Definition  of  terms  used  in,  766. 

Discussed,  444. 

Duties  of  receivers  appointed  hy  Federal  courts,  772. 

First  act  repealed  and  more  comprehensive  act  passed,  445,  774. 

How  the  agreement  to  arbitrate   shall  be   signed,  768,  769. 

Parties  shall  execute  awards,  769. 

Persuasive   only,   444,   445. 

ASH  PAN  ACT. 

"Common  carrier"  defined,  752. 

Effective  January  1,  1910,  752. 

Interstate  Commerce  Commission  to  enforce,  752. 

Locomotive  excepted,  753. 

Locomotives   must   be   equipped   with    an   ash   pan    which    can   be 

dumped  without  going  thereunder,  752. 
Penalty  for  violating,  752. 

ASSUMED  RISK. 

Rule  as  to  under  safety  appliance  acts,  737,  764. 
Rule  under  Employers'  Liability  Act,  764. 

ATTACHMENTS  AND  GARNISHMENTS. 

When   may  issue   against  cars  engaged   in   or   credits   from   inter- 
state transportation,  71,  72. 

ATTEMPT. 

Illegal   to,   to   ol)tain   transportation   at   less   than   legal    rate,   136, 
562. 

ATTORNEY  GENERAL. 

Authority  to  transfer  property  of  Commerce   Court,  661. 

Boiler  inspection  act,  duties  under,  762. 

Certificate   of,   to  expedite   suits,   663. 

District  attorneys  to  prosecute  under  direction   of,   565,   609. 

Duty  of,  under  Government-aided  lines  act,  565. 

May  apply  to  Court  for  enforcement  of  Commission's  order,  411, 

610. 
Notice  to,   of  tentative  valuation   by  registered  letter,  618. 
Section  19  should  be  19a,  411. 
To  direct  prosecutions,  565,  609,  645. 

ATTORNEYS. 

Attorney-General,  duties  of  under  act  to  regulate  commerce,  565, 

609,  610,   618,   645,   663,   665,  762. 
District,  duties  of,  565,  609,  645. 
Fees  of,  ma,y  be  recovered  in  suits  for  damages  under  anti-trust 

act,  329,  347,  699. 


General  Index.  lOOl 

[References   are   to   pages.] 

ATTORNEYS— ConhMM^d. 

Fees   of,   not   recoverable   in   suits   against   initial   carrier   for   loss 

or  damage,  406. 
Fees  of,  when  may  be  recovered,  329,  347,  348,  699. 
Provision  of  state  law  for  fees  of,  60,  61,  62. 
Special,   may   be   employed,   360. 

AUTOMATIC  COUPLERS. 

Cars  to  be  equipped  with,  735,  738. 

B 

BASING  POINT. 

Disapproved,  193-194,  301-303. 

System  may  cause  illegal  discrimination,  193,  301. 

System  of,  rate  making  based  on  described,  193. 

BILLING. 

Freight   must   be   billed  without   discrimination,   293. 

BILLS  OF  LADING. 

Are  but  contracts,  47. 

Carriers  shall  issue,  626. 

States  may  not  regulate,  when  for  interstate  freight,  57. 

BLANKET  RATES. 

Called  also  group   rates,   189. 

Not  necessarily  illegal,  189,  190,  191,  301,  302. 

BLUE  SKY  LAWS. 

Invalid,  107.  ' 

BOARDS  OF  TRADE  AND  EXCHANGES. 
Regulation  of  by  states,  103. 

BOILER  INSPECTION  ACT.  I 

Annual  reports  of  chief  inspector,  761. 
Appeals   to  chief  inspector,  760. 
Damage  suits,  reports  not  to  be  used  in,  761,  762. 
Penalty  for  violating,  762. 
Statute   copied,  757-762. 

BONDS  AND  STOCKS  OF  COMMON  CARRIERS. 
Necessity  for  regulation  concerning,  91. 
Regulation  affecting  the  issuance  of  l)y  the  states,  91,  92. 
Valuation  report  to  show,  616. 

BREAKING  RATES  AT  RIVERS. 
Described,   194,   195. 

BREAKING  SEALS  OF  CARS. 
Prohibited,  445,  775,  776. 


1002  General,  Index. 

[References  are   to  pages.] 

BRIDGES. 

Regulation  of  by  states,  96,  97. 

Regulation  by  United  States,  459. 

State  not  subject  to  act  to  regulate  commerce,  96,  97. 

BRIEFS. 

Rule  as  to  filing  with  Interstate  Commerce  Commission,  397, 
398. 

BULKED  SHIPMENTS. 

Held  to  be  legal  in  United  States  by  Interstate  Commerce  Com- 
mission, 267. 

Legal  under  English  law,  266,  267. 

Supreme  Court  sustained  Interstate  Commerce  Commission,  267, 
268. 

BURDEN  OF  PROOF. 

Changes  in  rat.es,  rules  or  practices  which  increase  burden  of  or 
decrease  service  to  shipper,  burden  to  justify  on  carrier,  188, 
358,  382,  587-589. 

Distinction  between  act  to  regulate  commerce  and  English  stat- 
ute, 358. 

On  carrier  to  justify  an  increased  rate,  183,  184,  185,  186,  358,  382, 
587-589. 

On  carrier  when  changes  made  in  rules,  regulations  and  classifi- 
cations,  188,  383. 

BUSINESS  CONDITIONS. 

Efifect   of  on   rate   making,   178. 
Prosperity   no  ground  ior   increasing  rates,   179. 
Not  justify  rate  less  than  reasonable,  181. 

Rates  that  have  declined  under  commercial  conditions  may  be 
restored,  180. 


CABLE  COMPANIES. 

Charges  shall  be  just  and  reasonable,  458. 
Exchange  of  passes,  473. 
Messages,  classification  of,  471. 
Subject  to  Act,  451. 

CANADA. 

Rates    applicable    in   only,    not    within    jurisdiction    of    Interstate 

Commerce  Commission,  131. 
Rule  as  to  joint  through  rates  to,  454,  543. 

CANADIAN  LAW. 

Pooling   not    illegal   under,   but   leave   must   be    obtained   to   pool, 
514. 


General  Index.  1003 

[References   are   to   pages.] 

CANAL. 

Lake  Erie  &  Ohio  Ship  Canal,  355,  668.  669. 
Panama  Canal  Act,  212,  313,  315,  316,  516-519. 

CAR   LOADS. 

A  carload  rating  legal,  198,  199,  200,  201,  202. 

Differential  between  rate  on  and  L.  C.  L.  must  be  reasonable,  202, 
265,  266. 

Interstate  Commerce  Commission  not  inclined  to  compel  the 
granting  of  a  carload  rating,  199. 

Percentage  of  commodities  given  carload  rating,  266. 

Principle  of  giving  a  carload  rating  generally  adopted,  266. 

Rule  as  to  carload  rate  when  carload  made  up  of  separate  par- 
cels owned  by  different  persons,  266,  267,  268. 

Rule  as  to  when  carload  rating  proper,  200,  207,  467. 

CARLOAD  MINIMA. 
Related  to  rate,  203. 

Carload  rate  applied  when  no  minimum  weight  prescribed,  203. 
Must  be  without  discrimination,  202,  265,  266. 

CARMACK  AMENDMENT. 

Amended  by  Cummins  Amendment,  629,  630. 
Initial  carrier  liable  under,  405,  406,  626-628. 

CARRIERS. 

Agent,  must  designate  in  Washington,  640. 

Bound  by  when  filing  a  tariff  for  or  participating  in  a  through 
rate,  543. 

Common  carrier  defined,  459,  460. 

Consolidation  of  may  be  prohibited  by  states,  when,  19,  20. 

Dual  regulation  of  by  states  and  the  United  States,  10,  26. 

Duties  of,  at  common  law,  111,  112,  461. 

Duties  of,  under  act  to  regulate  commerce,  140,  141,  461,  463, 
620. 

Duty  to  make  annual,  monthly  and  special  reports  to  Interstate 
Commerce  Commission,  119,  363,  620-623. 

Foreign,  when  subject  to  act  to  regulate  commerce,  45L 

Initial  carrier  may  contract  against  liability  for  loss  or  damage 
not  caused  by  it  or  by  a  connecting  carrier,  405,  406,  626,  627, 
628. 

Initial  carrier  not  liable  for  attorneys'  fees  in  suit  for  loss  or  dam- 
age, 406. 

Initial,  liable  for  loss  or  damage  caused  by  it  or  a  connecting  car- 
rier,   406,    626,    627,   628. 

Liability  on  contracts  of  shipments  subject  to  what  regulation, 
41-45,  458. 

Local  carrier  when  sul)ject  to  act,  to  regulate  commerce.  451,  452, 
455,  456. 


1004  Gene;ral  Index. 

[References   are   to   pages.] 

CARRIERS— Continued. 

May  be  compelled  to  perform  service,  34,  35,  306,  407. 

May  be  required  to  keep  accounts  by  states,  when,  47,  48,  49. 

May  not,  with  certain  exceptions,  transport  commodities  in  which 
they  are  interested,  285,  286,  287,  476-479. 

Must  file  contracts  relating  to  transportation,  528,  611. 

Must  keep  accounts  as  prescribed  by  Interstate  Commerce  Com- 
mission, 47,  48,  49,  623,  624. 

Must  publish  tariffs  of  rates,  519,  520,  528. 

Must  report  all  accidents,  744,  745. 

Must  specify  parties  to  tariffs,  527. 

Must   transport   at   reasonable   rates,   140,   141,   463. 

Must  transport  without  unjust  discrimination  or  undue  preference, 
233-240,  479-501. 

Pipe  line,  subject  to  act  to  regulate  commerce,  123,  451. 

Right  to  regulate  an  ancient  one,  63,  73. 

Water  carriers,  regulation  of,  451,  455,  456,  519. 

What  carriers  included  in  act  to  regulate  commerce,  122,  123, 
451. 

CARS. 

Breaking  seals  of,  when  and  how   punished,  445,  775,  776. 

Delivery  of  on  private  switch,  21-29.  477. 

Must   be   furnished  without   discrimination.   288,   289. 

Principles  applied  in  determining  duty  to  furnish,  290,  291,  292. 

Rules  for  distribution  of  between  different  shippers,  290,  322. 

States  may  require  pass'enger  cars  heated,  31,  53. 

Validity  of  state  laws  requiring  cars  to  be  furnished,  41,  42,  43, 
45,  47,  289. 

What  a  reasonable  rule  for  distribution  of,  an  administrative  ques- 
tion, 289,  323. 

CATTLE  GUARDS. 

May  be  required  b.y  state  law,  41. 

CLAIMS  FOR  LOSS,  DAMAGE  OR  OVERCHARGE. 

State  laws  prescribing  penalties  for  failure  to  pay,  58-62. 

CLASSIFICATION. 

A  public  function,  44,  271,  472. 

Commission  may  prescribe,  272,  578. 

Copies   of,   filed   with   Commission,   public   records,   611. 

Different   described,   272. 

Duty  of  carriers  with  reference  to.  471,  472,  611. 

Elements  of  valuation.  Commission  may  determine,  615. 

False 

By  carrier,  misdemeanor,  561. 

By  shipper,  fraud,  declared  a  misdemeanor,  561,  562. 
Must  be  just  and  reasonable,  143,  472. 
Necessary  in  rate  making,  74,  142,  421,  422. 


General  Index.  1005 

[References   are   to   pages.] 

ChASSIFlCATJO'N— Continued. 
Official,  272. 

Of  property  of  carriers  for  valuation,  615. 
Of  telegraph  and  telephone  messages,  471. 
Principles  of,  144,  222,  269,  270,  271,  272. 
Power   of   Interstate   Con7merce   Commission   over,   272,   273,   472, 

611. 
Printing  and  posting,  519,  520. 
Rate  making,  necessary  to,  74,  142,  143,  144. 
Reasonable,  possible,  143. 
Southern,  272. 
Supplements  the  rule  that  cost  of  service  must  be  considered  in 

making  rates,  158. 
Uniform,  efforts  to  make,  271. 
Uniform,  needed,  271. 
Western,  272. 

CLAYTON  ANTI-TRUST  ACT. 
Anti-trust  defined,  704. 

Attorneys  fees  recoverable  as  damages,  699. 
Commerce  defined,  705. 
Contempt   proceedings,   719-722. 
Corporate  officers  punishable  when,  710. 
Corporations  not  to  own  stock  in  a  competing  one,  707. 
Damages   recoverable   by  person   injured,   706. 
Discrimination   in   prices   illegal,   when,   705,   706. 
Duty   of   common   carriers    to   let    contracts   by   competitive   bids, 

711,  712. 
Federal   Reserve   Board,   duties  under,  712. 
Federal  Trade  Commission,  duties  under,  712. 
Final  judgment  in  prosecutions  or  government  suits  under,  prima 

facie   evidence   against    defendant,   706,   707. 
Guilt  personal,  715. 

Injunction  orders,  what  must  contain,  718. 
Injunctions    to   restrain    violations   grantable    by    District    Courts, 

716. 
Injunctions  obtainable  liy  private  persons,  716. 
Interlocking  directorates  prohibited,  708,  709. 
Interstate  Commerce  Commission,  duties  under,  712. 
Invalidity  of  part  of  act  not  to  afifect  the  rest,  722. 
Jury  trial  provided  for,  720,  721. 
Labor  disputes,  707. 

Labor  not  a  commodity  or  article  of  commerce,  707. 
Officers   of   corporations   punishable,   710. 
Patented   articles   not    sold   witli    reservation    to    fix   resale   prices, 

705,   706. 
Person  includes  corporation,  702. 
Philippine  Islands,  act  will  not  apply  to,  706. 


1006  General  Index. 

[References  are   to  pages.] 

CLATON  ANTI-TRUST  ACT— Continued. 

Procedure   to   obtain   temporary   restraining   orders,  717. 

Resale  prices  regulated,  705,  706. 

Security  may  be  required  before  obtaining  restraining  order,  718. 

Trial  by  jury,  when,  720. 

Venue  of  suits  under,  715. 

Violators  of  not  to  use  Panama  Canal,  519. 

Witnesses,  attendance  of,  715. 

See  also  Anti-Trust  Law. 

COAL. 

Entitled  to  a  relatively  low  rate,  164. 

COMMERCE. 

Act  to  regulate,   constitutional,   116,   117,   118,  119,  452. 

All  subject  to  regulation,  9,  10. 

Defined.  3,  705.  725. 

Discussed  only  in  its  relation  to  interstate  transportation,  3. 

Insurance  is  not,  4. 

Interstate,  defined,  3. 

Power  of  Congress  over,  3,  4,  5,  43,  113,  451. 

Power  of  Congress  to  regulate  interstate,  plenary,  2,  3,  4,  113. 

Teaching  by  correspondence,  is,  4. 

Telegraph  business  is,  4,  451. 

■COMMERCE  CLAUSE. 

Limitation  of  power  of  states,  2,  4,  5,  8. 
Power  of  Congress  under,  plenary,  4,  7. 
Source   of  power  of  Congress,  2. 

COMMERCE  COURT. 
Act   creating,   647-655. 
Abolished,  655-656. 
Jurisdiction  of,  409. 

Jurisdiction  transferred  to  District  Court,  409,  410. 
Pending  suits  transferred,  660. 

COMMODITIES   CLAUSE. 
Annotated,  476,  477. 
As  stated  by  Supreme  Court,  287. 

Discussion  of,  by  Interstate  Commerce  Commission,  477. 
Evils  sought  to  be  remedied  by,  286. 
Illegal    before    statute    for    a    carrier    to    transport    commodities 

owned  by  it  at  less  than  published  rate,  285,  476. 
Substance  of  transaction  and  not  form  controls,  287,  288,  477. 
Valid  as  construed,  287,  477. 
Violation  of,  may  be  enjoined,  286. 

COMMON  CARRIER. 
Complaints  by,  571. 
Defined,  459,  460. 


General  Index.  1007 

[References   are   to   pages.] 

COMMON  CARRIER— Continued. 

Duty  to  observe  and  comply  with  orders  of  Interstate  Com- 
merce Commission,   559,  583. 

Regulation  of  by  laws  of  Hamurabi,  63,  73. 

Regulated  whether  incorporated  or  not,  14. 

Subject  to  act  to  regulate  commerce,  451,  459. 

To  include  express  and  sleeping  car  companies,  122,  459. 
COMMON  LAW. 

Changed  to  make  initial  carrier  liable  for  loss  or  damage  caused 
by  a  connecting  carrier,  626. 

Discrimination  illegal  at,  112. 

Duties  of  common  carriers  under.  111,  112. 

Principles  of  control  in  interstate  transportation,  except  when 
modified  by  act  of  Congress,  113,  553,  554. 

Provisions  of  act  to  regulate  commerce  in  addition  to  remedies 
at,  366. 

State  laws  limiting  or  enlarging,  55. 

COMMUTATION  TICKETS. 
Not  illegal,  303,  631,  635,  636. 
To  school  children,  303,  809. 

COMPARISONS. 

A  method  of  determining  value,  197. 

Competent  to  make  in  determining  whether  or  not  a  rate  is  rea- 
sonable, 196. 

Not  alone  sufficient  when  between  dififerent  parts  of  the  coun- 
try to  condemn  a  rate,  197. 

The  greater  similarity  between  the  conditions  compared,  the 
greater  value  the  comparison,  197. 

COMPETITION. 

Does   not  justify   discrimination   against   individuals,   237. 

Effect  of  right  to  suspend  rates  on  consideration  to  be  given  to 
suppression   of  competition,   169,   170. 

Existence  or  non-existence  of  competition  considered  in  deter- 
mining reasonableness   of  a  rate,   164,   165,   166. 

Favored  by  law,  165,  166. 

Market  competition  effective  in  determining  lates,  171,  172. 

May  relieve  from  rule  as  to  long  and  short  hauls,  263. 

Never  raises  rates,  169,  170. 

Rail  competition  suppressed,   172. 

Rate  as  result  of  suppression  of,  prima  facie  illegal,  168. 

State  laws  prohibiting  suppression  of,  19,  20. 

Water  competition  discussed,  171. 

Water,  effect  of,  171,  513,  514. 

When  taken  into  account,  no  presumption  of  wrong  when  rate 
advanced,  167,  168. 

W'iU  bring  charges  down  to  what  is  reasonable,  166,   170. 


1008  General  Index. 

[References  are   to  pages.] 

COMPLAINT   TO    INTERSTATE    COMMERCE   COMMISSION. 
Amendment  of,  394,  559. 

Can   not  compel  attendance   of  witness  unless   filed   or  unless   in- 
vestigation might  become  the  subject  of,  350-354. 
Commission  may  act  without,  352. 
Complainant  need  not  be  free  from  fault,  572,  573. 
Forms  of,  399,  400. 
Intervention,  573. 

Not  dismissed  for  lack  of  injury  to  complainant,  573,  574. 
Rules  as  to,  379,  391. 
Who  may  make,  390,  571. 

CONFERENCE  RULINGS. 
Copied,  779-942. 
Explanation  of,  779. 
Index  to,  943-989. 
Why  inserted,  VI. 

CONGRESS. 

Power  over  interstate  Commerce  plenary,  3,  4,  5,  43,  113,  451. 

CONNECTING  LINES. 

Discrimination  between,  forbidden,  252,  253,  255,  256,  257. 

Initial  carrier  liable  for  loss  or  damage,  406,  626,  627,  628. 

Interchange  of  traffic  between,  477,  501. 

Recourse  against,  by  initial  line,  627. 

Use  of  tracks  or  terminal  facilities  of  another  carrier,  501. 

CONNECTIONS  BETWEEN  RAILROADS. 

Delivery  over  may  be  required,  22,  23,  26,  27,  501. 

Indemnity  may  be  required,  27. 

May  be  compelled  by  mandamus,  22,  23,  24,  25,  26. 

Physical    connection    between    two    railroads    required,    when,    21, 

22,  24,  27,  461,  591. 
With  water  carriers,  545. 

CONSIGNEE. 

False  billing,  etc.,  by,  declared  a  misdemeanor,  561. 

Information    concerning    shipment    of,    not    to    be    disclosed,    593, 

594. 
Unjust  discrimination  against,  induced  by  other  shipper,  563. 

CONSIGNOR. 

False  billing,  etc.,  by,  declared  a  misdemeanor,  561. 

Unjust   discrimination  against,   induced  by   other   shipper,   563. 

CONSTITUTION. 

Fourteenth  Amendment  limits  rate  making  power  of  states,  7.  81. 

Orders  of  Interstate  Commerce  Commission  void  when  violative 
of  rights  under  4th  or  5th  amendment,  419,  420,  421. 

Provision  giving  Congress  the  power  to  regulate  interstate  com- 
merce, 2,  113. 


General  Index.  1009 

[References   are   to   pages.] 

CONSTITUTIONAL. 

Act  to  regulate  commerce  is,  116,  117,  118,  119,  452. 

Commodities  clause  is,  287,  477. 

Employer's   Liability   Act   is,   57,   444. 

Long-and-short-haul  clause  is,  120,  264,  512. 

Provision  of  act  to  regulate  commerce  requiring  carriers  to  keep 

accounts   and   make   reports   is,   119. 
Provisions  relating  to  commerce,  113. 
Safety   appliance  acts  are,   440. 
Twenty-eight  hour  law  is,  673. 

CONTINUOUS  CARRIAGE  OF  FREIGHT. 

Contracts   and   combinations   to   prevent,   illegal,   547. 

CONTRACTS. 

And  agreement  to  be  filed  with  Commission,  528,  611. 

Annual  report  of  carrier  concerning,  621,  622. 

Commission  may  require  production  of,  565. 

Exchange  of  services,  471. 

Exempting  carrier  from  liability,  626-628. 

Filed  with   Commission  are  public   records,  611. 

For  pooling  of  freight  and  division  of  earnings,  514-516. 

For  use  of  cars,  facilities,  etc.,  459. 

No  persons  excused  from  producing,  669,  670. 

Not  controlling  in  making  rates,   183,  499. 

Of  Government-aided  lines  to  be  filed  with   Commission,  667. 

Road  operated  under,  included  in  term  "railroad,"  459. 

To  be  furnished  to  Commission  by  carriers,  617. 

To  break  bulk,  unlawful,  if  to  defeat  continuous  carriage,  547. 

Ultra  vires,  of  Government-aided  lines,  666. 

CONTRIBUTORY  NEGLIGENCE. 

Not  bar  a  recovery  for  damages  under  Employer's  Liability  Act, 

764. 
Damages  to  be  diminished  when  employee  guilty  of,  764. 

CORPORATIONS. 

Agents  bind,  when,  543. 

Complaints  to  Commission  by,  571. 

May  be  convicted  of  a  criminal  ofifense,  537. 

Required   to  produce  papers,  etc.,  421. 

COST  OF  CARRIERS'  PROPERTY. 

Analysis  of  methods  of  ascertaining,  78,  79,  80,  145,  146,  147. 

Annual  report  of  carrier,  620. 

A  usable   basis  in  absence  of  valuation,   148. 

Must  be  considered  in  determining  reasonableness  of  a   rate,  •7H- 

80,  145. 
Original,  GIG. 
Reproduction,  G15. 


1010  General  Index. 

[References  are   to  pages.] 

COST  OF  SERVICE. 

A  particular  service  may  be  required  at  less  than,  154. 
"Cost  of  service"  and  "value  of  service"  contrasted,  155,  159,  160. 
How  far  considered  in  fixing  rates,  147. 
Must  be  supplemented  by  classification,  158. 

Relative  cost  of  interstate  and  intrastate  service  difficult  of  ascer- 
tainment,  86,   87. 

COURTS. 

Judicial  power  to  enforce  rights  under  act  to  regulate  commerce, 
408,   410-413,   548,   604,   644,   657,  666,   765. 

COURTS  OF  THE  STATES. 

May  enforce  carrier's  duty  to  transport,  406,  407. 

May  enforce   orders  of  reparation,  405,  406,   428,  604. 

May  enforce  rights  growing  out  of  safety  appliance  acts  and  Em- 
ployers' Liability  Act,  404,  765. 

May  enforce  the  law  fixing  the  liability  of  initial  carrier,  405, 
406. 

No  jurisdiction  to  enforce  act  to  regulate  commerce,  except 
when,  403,  404,  405,  406. 

Not  deprived  of  jurisdiction  because  carrier  incorporated  under 
laws  of  Congress,  643. 

COURTS  OF  THE  UNITED  STATES. 

Appeals  to  Supreme  Court,  659,  660,  663. 

Ash  pan  act,  jurisdiction  under,  764. 

Boiler  inspection  act,  jurisdiction  under,  762. 

Case  of  Texas  &  Pacific  R.  Co.  z:  Abilene  Cotton  Oil  Co.,  not 
conclusive  of  the  right  to  enjoin  unlawful  rates,  416. 

Commerce   Court.   409,   647-656. 

Concurrent  jurisdiction  to  enforce  Employers'  Liability  and 
Safety  Appliance  Acts,  404,  765. 

Concurrent  jurisdiction  with  courts  of  the  states  to  enforce  ini- 
tial carrier  liability,  405,  406,  407. 

Constitutional  and  statutory  provisions  affecting  the  right  to 
grant  injunctions  against  unlawful  rates,  414.  417. 

District  Court  Jurisdiction  Act,  655,  656. 

Effect  given  by,  to  orders  of  commission  to  desist,  418. 

Effect  given  orders  of  commission  fixing  rates,  rules  and  prac- 
tices for  the  future,  419-427. 

Efifect  given  orders  of  reparation,  427-430,  604. 

Exclusive  power  to  enforce  acts  of  Congress  may  be  conferred 
on,  403. 

Expedited  hearings,  when,  661. 
•  Forfeitures  may  be  enforced  in,  411. 

Hours   of   service   act,  jurisdiction   under,   750. 

Incorporation  under  act  of  Congress  not  alone  give  jurisdiction, 
463. 


General  Index.  1011 

[References   are   to  pages.] 

COURTS  OF  THE  UNITED   ST ATES— Continued. 

Injunction  against  unlawful  rates  at  common  law,  414-416. 

Injunctions  against  unlawful  rates  in  circuit  courts  of  appeals, 
414,  415. 

Injunctions  in  circuit  courts  since  Abilene  case,  416. 

Injunctions  against  unlawful  rates  prior  to  Abilene  case,  415. 

Injunction  under  anti-trust  laws,  716. 

Mandamus,  May  issue  writ  of.  to  enforce  act  to  regulate  com- 
merce, 411,  412,  644. 

May  compel  attendance  of  witnesses  before  the  Interstate  Com- 
merce Commission,  410,  645,  669. 

May  enforce  act  to  regulate  commerce,  408,  413,  625,  644. 

Ma,y  enforce  orders  of  the   commission,  411,  625,  644. 

May  issue  injunctive  orders  to  enforce  act  to  regulate  commerce, 
411,  412,  625. 

May  not  declare  a  rate  regularly  filed  with  the  Interstate  Com- 
merce Commission  unreasonable  prior  to  action  by  the  Com- 
mission, 133,  134,  558. 

Principles  upon  which  right  to  enjoin  increase  in  rates  is  based, 
414. 

Right  to  enjoin  an  illegal  increase  in  rates,  414-416. 

Rules  followed  in  suits  in  United  States  courts  to  set  aside  or- 
ders of  the  Commission,  419-427. 

Safety  appliance  acts,  jurisdiction  under,  736. 

Shipper  no  relief  against  orders  of  Commission,  418. 

Suits  in,  on  orders  for  reparation  or  damages,  427,  428,  604. 

Temporary  restraining  orders,  658. 

Venue  of  suits  in,  to  enjoin  unlawful  advance,  417. 

Venue  of  suits  on  orders  of  Commission,  656. 

CRUELTY  TO  ANIMALS. 

Act  not  apply  when   transportation   in   car   or  boat  where  proper 

food  and  exercise  is  given,  677. 
Act  to  prevent,  672-678. 
Act  to  prevent,  constitutional,  673. 
Animals  not  to  be  confined  longer  than  28  hours  while  in  transit, 

672. 
Carrier  given  a  lien  for  feed,  675. 
Feeding  at  owner's  expense,  675. 
"Knowingly   and   wilfully"   used    in    act   to   prevent,    defined,    674, 

676. 
Penalties  for  each  shipment,  676. 
Penalties  for  violating  act  to  prevent,  675,  676. 
Prior  law  on  the  subject,  673. 
Sheep  need  not   be  unloaded  at  night,  673. 
Suits   :'or  penalties  a  civil   action,  676. 
Time  may  be,  by  written  request,  extended  to  36  Iiours,  672,  073, 

674. 


1012  Generai,  Inde:x. 

[References   are   to   pages.] 

CUMMINS  AMENDMENT. 

Amendment  copied,  629,  630. 
Amendment   discussed,   631. 
Amends  sec.  7,  Act  1906,  630. 
Amends  sec.  20,  original  act,  630. 
Annotated.   631. 


DAMAGES.  RECOVERABLE  FOR  VIOLATING  ACT  TO  REG- 
ULATE COMMERCE. 

Advancing  a  rate,  awarded   for.  when,  5.i3. 

Amendment   of   claims   for,   may   be   allowed,   5.59. 

Assignment  of  claims  for,  345,  911. 

Attorneys  fees,  347,  348,  547,  548. 

Award  b,y  commission  after  hearing,  330,  547-559,   596,  604. 

Awards  of  for  discriminatory  charges,  334  to  338. 

Awards  of  for  unreasonable  charges,  331,  332. 

Awards   of  for'  not  plainly   stating  rate,   525. 

Award  of  prima  facie  evidence  in  courts,  330.  427,  428,  558,  605. 

Breach  of  contract,  commission  not  to  allow  for,  331,  557. 

Claims  for  may  be  compromised,  552,  553. 

Claim  for  should  be  made  in  original  complaint  to  commission, 
375,  550,  553,  845. 

Commission  no  authority  to  award  a  set-ofif  against  a  shipper, 
329. 

Commission  no  authority  to  award  for  breach  of  contract,  329, 
331,  557. 

Complainant  must  show  that  he  is  damaged,  333,  343,  376,  554, 
555. 

Courts  may  not  award  for  charging  an  unreasonable  rate  pre- 
scribed in  a  regularly  filed  tariff  prior  to  action  by  commis- 
sion, 133,  134,  558. 

Courts  may  award  damages  after  the  commission  has  declared 
a  rate  unlawful,  429,  558,  559. 

Damages  used  interchangeably  with  reparation,  334,  338. 

Delivery,  failure  to  make,  not  ground  for,  552. 

Discrimination,  undue,  allowance  for,  334,  559,  563. 

Fourth  section  violations,  awards  for,  329,  338,  339,  512,  553,  557, 
915. 

F.  O.  B.  shipper  can  not  recover,  345. 

Full  amount  of  overcharge  may  be  recovered  as,  330,  547,  548, 
596. 

Initial  carrier  liable  on  through  shipment,  626-628. 

Informal  complaints  for,  349,  375,  925,  926. 

Interest  allowed,  347,  914. 

Joint  liability  of  carriers,  345,  346. 

Limitation  on  claims  for.  349,  350,  351,  606. 


General,  Indkx.  1013 

[References   are   to   pages.] 

DAMAGES  RECOVERABLE  FOR  VIOLATING  ACT  TO   REG 

ULATE   COMMERCE— Con^mM^rf. 
May  be  awarded  for  misrouting,  339,  340,  o52. 
May  recover  for  violation  of  sec.  6,  557. 
May   sue   on   order   for   in    Federal   or   state    court     404    4-'8    604 

605.  •      ~   . 

Measure  of,  550,  553. 
Must  award,  when,  337,  559,  604. 

No  recovery  of  for  misquoting  a  rate  prior  to  act   l')10    135    551 
552.      .  .         ,         ^ 

Now  may  recover  for  misquoting  a  rate,  135,  342,  536. 
None  allowed  for  violating  4th  section  while  application  for  re- 
lief under  is  pending,  338,  339,  512,  553,  557. 

Order  of  commission  for  prima  facie  proof  of  right  to    330    4'?7 
428,  558.  '  '     "   ' 

Parties    to   suit   for,   430,    548,    604. 

Procedure  on   complaints  for,  374,   375,  376,   485,   548,   604. 

Profits  m^y  be  recovered,  550. 

Protest  not  necessary  before  recovery  of  for  charging  unreason- 
able rate,  346,  551,  574. 

Rebate  to  one  not  measure  of  damage  to  another,  335,  556. 

Remedy  for  inadequate  for  charging  unreasonable  rate,  348. 

Rights  to,  assignable,  345. 

Suit  in  courts  on  award  of,  404,  428,  429,  430,  548,  604. 

Tort,  Commission  not  to  allow  for,  549. 

Transit,  failure  to  accord,  557,  558. 

Violation  of  statute  authorizes  award,  547,  557,  558. 

What  carriers  liable  for  overcharge,  345,  549. 

When  a  cause  of  action  accrues  for,  350,  607. 

Where  to  sue  for,  548. 

Who  may  recover  for  overcharge,  343. 

DELIVERY  OF  INTERSTATE  FREIGHT. 
Congress  alone  may  regulate,  43. 

DEMURRAGE. 

On  interstate  shipments,  43. 

On  intrastate  shipments  governed  by  state  law's,  46. 

DEMURRER. 

Form  of  notice  of,  401. 
Notice  in  nature  of,  393. 

DENSITY  OF  TRAFFIC. 
All  traffic,  173,  176. 
Particular  traffic,  173,  174,  175,  176. 

DEPOSITIONS. 

Notice  of  taking,  395. 

Of  witnesses   may   l)e   taken    on   hearings   l)efore   commission,   ;t!M, 
569,  570. 


1014  General  Index. 

[References  are   to  pages.] 

DEPOTS. 

States  may  require  construction  of,  14,  15,  16. 

DIFFERENTIAL. 

Between  carloads  and  less-than-carloads,  202,  265,  266. 
Between  carloads  and  train-loads  illegal,  203,  268. 

DISCLOSING  INFORMATION. 
Concerning  shipments,  593,  594. 
Penalty  for  examiner,  625. 

DISCRIMINATION. 

Against  individuals,  236-239,  245,  479,  487. 

Against  localities  prohibited,  245-247,  487. 

Against  traffic  prohibited,  250. 

A  just  equality  of  opportunity  required,  501. 

Allowances,  generally,  when  legal,  241. 

Basing  point  system  is,  when,  191,  192,  301-303. 

Beyond  the  control  of  the  carrier,  249,  251,  501. 

Billing,  classifications,  etc.,  must  be  without,  293. 

Carload  and  less-than-carload  rates,  202,  265,  266. 

Cars  must   be  furnished  without,   288-292. 

Commission  has  primary  jurisdiction  to  determine  what  is,  250. 

Commission   may   not   require   rates   to   be   increased   in   order   to 

remove,  249. 
Common  law  prohibited,  24,  230,  231,  232,  553,  554. 
Differential    between    carloads    and    less-than-carloads    must    be 

without,  202,  265,  266. 
Damages  for,  334,  559,  563. 

Drayage  contract  may  be  limited  to  one,  503. 
Elevator  allowances  produce,  280,  500. 
English    statute   prohibiting,   479,   480,   488,   489. 
Fair  play  the  requirement  of  the  law,  249,  501,  502. 
Free   transportation   may   constitute,   300,   301. 
Freight  charges  must  be  paid  without,  292,  301. 
Group  rates  not,  302. 
Injunction  against,  413,  498. 
Localities,  245,  246,  247,  488. 

Longer  haul  at  less  rate   than   shorter,  259,  504-513. 
May  be  prevented  by  writ  of  mandamus,  411,  413,  636,  637. 
Milling  in  transit  not  illegal,  273,  274. 
Open-gateway  policy  required,   502. 
Penalties  for  inducing,  563,  564. 

Prohibited  by  act  to  regulate  commerce,  234,  235,  479,  488. 
Rates  differing  in  opposite  directions  may  be  lawful,  298,  299,  300, 

482,   494. 
Rebates,  304,  305,  537-543. 
Rebilling  may  be  illegal,  275-280. 
Returned   shipments,  487. 


Generai,  Index.  1015 

[References  are  to  pages.] 

DISCRIMINATION— Co;/hHMcd. 

Rule  against,  applies  to  accessorial  services,  239,  305. 

State  rates  producing,  6,  75,  114,  303,  383-386,  458,  459. 

Statute  against  applies  to  facilities  as  well  as  to  rates,  239,  483. 

Summary  of  principles  relating  to  law  of,  307,  308. 

Time  does   not   cure,  497. 

Transit  regulations,  281. 

Trap  car  service,  242,  243. 

Undue  or  unjust  only,  illegal,  232,  484,  486,  496. 

Unlawful  to,  in  interchanging  traffic,  251-257,  501. 

Unlawful  at  common  law,  24,  230,  231,  232,  553,  554. 

Wharfage  rights  limited  to  one  company,  503. 

DISTANCE. 

Rates  should  not  be  based  wholly  on,  190. 

DISTRICT  ATTORNEY. 

Ash  pan  act,   duty  under,   752. 

Boiler  inspection  act,  duty  under,  762. 

Duties  under   Elkins  act,  645. 

Hours  of  service  act,  duty  under,  750. 

Safety  appliance  acts,  duty  under,  736,  741. 

To  prosecute  for  recovery  of  forfeitures,  609. 

To  prosecute  under  direction  of  Attorney  General,  565,  609. 

DIVISIONS. 

Allowances  to  industrial  and  tap  lines  called,  283,  284,  316. 
Of  joint   through   rates,   power   of  commission   to   prescribe,   211, 
315,  319,  584,  585. 

DIVISIONS  OF  JOINT  RATES. 

Allowances  and  divisions  used  in  same  sense,  283,  284,  316. 
Commission  has  power  to  prescribe,  211,  315,  319,  584,  585. 
Industrial  roads  may  receive,  284,  314,  315,  320,  321,  594. 
Must  ibe  reasonable  and  nondiscriminatory,  315,  321,  594,  595. 
"Or  otherwise"  in  statute,  relating  to,  construed,  585. 
Tap  lines  may  receive,  283,  284,  315,  321. 

DUAL  REGULATION  OF  INTERSTATE  CARRIERS. 
Burdensome,  10,  26. 

E 

ECONOMIC  MAXIMUM. 

Amount  of  freight  tendered  may  exceed,  175. 

ELECTION  OF  REMEDIES. 

For  damages  caused  b,y  violations  of  act  to  regulate  commerce, 
133,  134,  547,  548,  558. 

ELEVATION. 

Included  in  term  "transportation,"  31,  459,  461. 


1016  General  Index. 

[References   are   to  pages.] 

ELEVATOR  ALLOWANCES. 
Defined,  280. 

Not  necessarily  unlawful,   280,   500. 
When  states  may  regulate,  31. 

EMINENT  DOMAIN. 
Defined,  11. 
Right  of  in  states,  11. 
United   States  may  exercise   right,   when,   12. 

EMPLOYEES  OF  CARRIERS. 
Full  crew  law,  39. 
Hours  of  service  limited,  749. 

Hours  of  service  when  engaged  in  interstate  commerce  not  sub- 
ject to  state  regulation,  40. 
Requiring  engineers   to   be  licensed,   38. 
State   law   affecting   interstate   carriers,   38,    39,   40. 
Wages  required. to  be  paid  semi-monthly,  40. 
When  rule  as  to  assumed  risk  does  not  apply,  737,  764. 

EMPLOYERS'  LIABILITY  ACT. 

Applies  only  to  carriers  engaged  in  interstate  commerce  or  in 
the  territories,  444,  764. 

Carrier  shall  not  limit  liability  by  contract,  764. 

"Common  carrier"  defined,  765. 

Contributory  negligence  not  bar,  but  decrease  damages,  764. 

First  act  unconstitutional  in  states,  57,  444. 

Liability  under  for  death,  763,  765. 

Limitation  of  right  of  action  under,  764. 

May  be  enforced  by  state  courts,  764,  765. 

No  assumed  risk  where  carrier  violates  safety  appliance  acts, 
764. 

Not  affect  act  1906  in  its  application  to  territories,  765. 

Present  law  valid,  57,  444. 

State  laws  may  not  affect  when  engaged  in  interstate  transporta- 
tion, 40,  58. 

State  laws  valid,  58. 

ENGLISH  RAILWAY  AND  CANAL  TRAFFIC  ACTS. 

Comparisons  between  and  act  of  Congress,  232,  233,  234,  479,  488, 

489,  505. 
Long-and-sh'ort-haul  clause  of  English   law,  233,  505. 
Pooling  not  contrary  to,  514. 
Section  90  English  act  given,  233,  479. 
Section  3  based  on  section  2  of  English  act,  488,  489. 
Section  2  act  to  regulate  commerce  based  upon,  479. 
Section  2  of  Act  1854  and  section  11  of  Act  1873  given,  233,  488 

489. 


General  Index.  1017 

[References   are   to   pages.] 

ESTOPPEL. 

Carriers   not   prevented   by   to   increase    rates   to   what   is   reason- 
able, 182,  357. 

EVIDENCE. 

Contracts,  etc.,  filed  with  commission  used  as,  611. 

Existing  laws  for  production  of,  637. 

Final  valuation,  prima-facie  evidence,   618,  619. 

Findings  of  fact  by  commission,  prima  facie,  605. 

Immunity  of  witnesses,  411,  548,  569,  639,  645,  646,  669,  670,  671. 

In  court  as  to  value  different  from  valuation  of  commission,  618, 

619. 
May  be  taken  by  deposition,  394,  569,  570. 
Reports  and  decisions,  competent  as,  576,  577. 
Special  agents   or  examiners  may  receive,  626. 
Technical  rules  of,  not  apply  to  hearings  before  commission,  224, 

573,  574. 

EXAMINER. 

Attorney-examiners  and  special  examiners,  364,  365. 
Penalty   for   divulging   information,   364,   365,   625. 
Special  may  be  appointed,  364,  365,  615,  624,  626. 
Testimony  taken  before,  364,  365,  624. 

EXAMINERS   OF   INTERSTATE   COMMERCE   COMMISSION. 
Kinds  and  duties,  364. 

EXPEDITING  ACT. 

Suits  under  act  to  regulate  commerce  controlled  by,  646. 
The  act  copied,  661-663. 

EXPLOSIVES. 

xA.ct  regulating  the  transportation   of,  754-756. 
Gunpowder  under  act,  754. 
Transportation   of  regulated,   440,   755. 

EXPRESS  COMPANIES. 

Cost  of  equipment  of  little  value  in  fixing  rates  of,  150. 

May  grant  free  transportation,  473,  476. 

Prior  to  Act  1910,  could  not  grant  free  transportation,  476. 

States   may   not   control   delivery   by,   of   property   transported   in 

interstate   commerce,   45. 
Subject  to  act  to  regulate  commerce,  459. 


FAIR  RETURN   ON  CARRIER'S   PROPERTY. 
What  is,  79,  82,  83,  84,   149-153. 

FALSE  BILLING. 

A  form  of  discrimination,  293,  294. 
Prohibited,  561,  562. 


1018  General  Index. 

[References  are   to  pages.] 

FALSE  CLASSIFICATION. 
Penalties  for,  561. 

FALSE  ENTRY. 

In  accounts  punished,  624. 

FALSE  WEIGHING. 
Penalties  for,  561. 

FARES,  PASSENGER. 

Must  be  paid  in  money,  69,  301,  846. 

FEDERAL  RESERVE  BOARD. 

Effect  of  orders  under  anti-trust  act,  712. 

Duty  of  to  enforce  certain  provisions  of  anti-trust  act,  712. 

Procedure  to  enforce  anti-trust  acts,  712,  713,  714. 

FEDERAL  TRADE  COMMISSION.' 
x\ct  creating,  723-733. 
Act  creating  not  affect  act  to  regulate   commerce   nor  anti-trust 

acts,  440,  733. 
Act  regulating  commerce  defined  in  act  creating,  439,  725. 
Commerce,  definition  of,  in  act  creating,  439,  725. 
Duty  to  enforce  certain  provisions  of  anti-trust  acts,  712. 
Effect  of  orders  under  anti-trust  act,  712. 
Procedure  to  enforce  anti-trust  acts,  712,  713,  714. 

FEED. 

Animals  in   interstate  transportation  must   receive.  672. 

FERRIES. 

Included  in   term   railroad,   94,   459. 
State  regulation  of,  95. 

FIFTH  AMENDMENT. 

Limits   power   of   Congress    over   rates,   419,   420. 
Orders  of  Interstate  Commerce  Commission  void  if  violative  of, 
420,  421. 

FLORIDA. 

Special  freight  classification  in,  272. 

F.  O.  B.  SHIPPER. 

Can  not  recover  for  overcharge  when  pays  no  freight,  345. 

FOOD. 

Pure  food  laws,  104. 

FORMS     OF     PROCEDURE     BEFORE     INTERSTATE     COM- 
MERCE COMMISSION. 
Answer,  401. 
Complaint,  399,  400. 
Depositions,  notice  to  take,  394,  395. 
Notice  in  nature  of  demurrer,  401. 
Subpoena  for  witnesses,  396. 


General  Index.  1019 

[References  are  to  pages.] 

FOURTEENTH  AMENDMENT. 

Limits  power  of  states  to  regulate  intrastate  rates,  81. 
What  rates  violate,  81-85.     . 

FOURTH  SECTION. 

Amendment  of  1910,  204,  209,  264,  504-.514. 

Authorities  on,  summed  up,  324,  504-512. 

Burden  of  proof  on  carrier  to  show  reasons  for  not  following, 
363,  513. 

Carriers  under  old  law  could  disregard  when  competitive  con- 
ditions justify  without  previous  permission  of  the  commis- 
sion, 261. 

Circuitous  route  under,  512. 

Clause  copied  and  annotated,  504-514. 

Commission  alone  authorized  to  permit  relief  from,  370. 

Congress  has  power  to  make  rule  of  absolute,  371. 

Constitutional,   120,  264. 

Damages  for  violating  allowed,  when,  338,  339,  512,  553,  915. 

Discussed,  260-266. 

Enforced   in   Social   Circle   Case,   261. 

History  of,  207-209,  260-266,  323,   504-512. 

In  determining  applications  for  relief  from  reasonableness  of  in- 
termediate  rates   involved,   209,   371,   512. 

Old  Law,  504,  505. 

Procedure  on  applications  for  relief  from,  326,  370,  399,  513. 

Provisions  of  relating  to  water  competition,  325,  326,  372,  513. 

Relation  of  through  rate  to  intermediate  rates,  204-209,  235,  265, 
504. 

Similar  clause  in  English  law,  234,  505. 

State  laws  on  subject,  92,  93. 

FREE  TRANSPORTATION. 

Exception   to  rule  against,  472,  473,   631. 

Express   companies  may  grant,  473,  476. 

Discriminatory.  68,  300. 

Illegal,  with  certain  exceptions,  68,  472,  631,  632. 

Railroads  may  exchange,  472,  473. 

Railroads   may   give,   to   certain   persons   engaged   in    religious   or 

eleemosynary  work,  68,  472,  631. 
Railroads  may  give,  to  inmates  of  Sailors'  and  Soldiers'  Homes. 

472,  631. 
Railroads  may  give,  to  own  officials  and  employees,  471,  472. 
Railroads  ma,y  give  to  States,  68. 
States  may  not  compel  grant  of  to  shipper,  65,  68. 
See  Conference  Rulings  index  pp.  943-989. 

FULL  CREW  LAW. 
By  states  valid,  39. 


1020  General  Index. 

[References   are   to   pages.] 

G 

GAME. 

Laws  regulating,  104. 

GAS. 

Transportation  of  not  within  act  to  regulate  commerce,  451. 

GEORGIA. 

Special  freight  classification,  272. 

GOVERNMENT  AIDED  RAILROADS  AND  TELEGRAPH  COM- 
PANIES. 
Duties  of,  664. 

GROUP  RATES. 

Called  also  blanket  rates,  189,  190. 

Legal,  if  not  discriminatory,  189,  190,  191,  301,  302. 

H 

HARBORS. 

States  may  regulate,  101. 

HEAD  LIGHTS. 

State  law   requiring  electric,   held   valid,   30,  39,   54. 
Law  of  doubtful  validity,  31,  39,  54. 

HAMURABI. 

Laws  of,  regulated   common   carriers,  63,   73. 

HEPBURN  ACT. 

Eflfective  when,  639. 

Not  affect  pending  suits,  640. 

HOURS  OF  SERVICE  ACT. 

Common  carriers  subject,  440,  441,  749. 

Compliance  with  act,  440-443,  749. 

Conference  ruling  relating  to,  440,  441,  442,  443,  883-886. 

Continuous  service,  443. 

Copied,    749-751. 

Employees  defined,  749. 

Enforcement,  750. 

Exceptions  to  act,  750. 

Off   duty,  443,   749. 

Penalty  for  violation,  750. 

Prosecutions,  750. 

Railroad   defined,   749. 

Service   hours,   750. 

State  laws  void  as  to  interstate  commerce.  40. 

Street  car  lines,  441. 

Telephone  and  telegraph  operators,  441. 


Gene;rai,  Index.  1021 

[References   are   to   pages.] 

I 

ILLINOIS. 

Special  freight  classification  in,  272. 

IMPORT  RATES. 

May  be  less  than  domestic,  382,  483. 

INCREASED  RATES. 

Intrastate  rates  to  be  considered,  383,  384,  385,  386. 

Burden  of  proof  on  carrier,  as  to  reasonableness  of,  338,  382,  .587. 

589. 
By  railroads,  elimination  of  water  competition,   513,   514. 
Weak  and  strong  roads  each  considered,  386. 

INDUSTRIES'  TRACKS. 

Allowances  to,  284,  314,  315,  321,  594. 

INITIAL  CARRIER. 

Bill   of  lading  to   be   issued  by,   626,   627.   628. 

Liable  for  loss  or   damage  caused  by   it   or  a   connecting   carrier. 

406,  626. 
May  have  recourse  on  carrier  lialile  for  loss,  627. 

INJUNCTION. 

Against  state  statutes,  431,  641,  642. 

At  common  law,  413,  414,  415. 

Courts  of  United  States  may  grant  against  an  unlawful  advance 

in  rates,  414,  415,  416. 
Decisions   of  circuit  courts  of  appeal   with   reference   to  grant   of 

against  an  unlawful  advance  in  rates,  415. 
Granted  to  prevent  departure  from  published  tariffs,  413,  644,  645. 
Granted   to   prevent   violation   of  commodities   clause,   286. 
Interlocutory  appeal  from  order  of,  433. 
Interlocutory,  notice  of  application  for,  431,  432,  657,  658. 
Interlocutory,  thiee  judges  to  hear  application   for,  431,  658. 
Interlocutory,  statement  of  facts,  when  granted,  432,  658. 
Limitation   on   right    to   grant   against    order    of   commission,    657, 

658. 
Principles  upon  which  granted,  418. 
To   prevent   violation   of  Clayton   anti-trust   act,   716. 
Under  act  to  regulate  commerce,  413,  657,  658. 
Under  anti-trust  act,  716. 
Venue  of  suits  in  action   for,  416,  433,  434. 

INSPECTION  LAWS. 

State  laws  relating  to  valid,   104,  105. 

INSTRUMENTALITIES. 

Allowance  to  person  furnishing,  320,  594,  595. 
Included  in  term  "Iransiiortation,"  459. 


1022  General  Index. 

[References  are   to  pages.] 

INSURANCE. 

Not  commerce,  4. 

Subject  to  regulation  as  to  rates  of,  73. 

INTERCHANGEABLE  MILEAGE  TICKETS. 
Provisions  for  issuance  of,  635. 

INTERCHANGE  OF  TRAFFIC. 

Facilities  for  required  by  act  to  regulate  commerce,  252-259,  501. 

State  laws  requiring,  26-29. 

Switch  connections,  135,  312,  314,  369,  370,  476,  479. 

INTERMEDIATE  RATES. 

Relation  of  to  through  rates,  206,  265,  324,  325,  504-513. 

INTERSTATE  COMMERCE. 

Congress  alone  may  legislate  directly  affecting,  4,  43,  75,  113,  303. 

451. 
Congress  has  not  as  yet  exercised  its  full  power  over,  45,  124. 
Defined,  2. 
Power    of    Congress    over    exclusive,    when,    4,    43,    75,    113,    303, 

451. 
Power  to  regulate  defined,  113. 
State  carrier  engaged  in  when,  451,  452,  455,  456. 
States'  indirect  power  over,  ends  when  Congress  acts,  7. 
States  may  indirectly  affect,  3. 
Traffic    originating    and    ending    in    a    state    but    passing    through 

other  state  is,  132. 
What  is,  3,  113. 

What  is  embraced  therein,  3,  70. 
When  begins  and  ends,  70. 
Whether  transportation  is  or  is  not,  controlled  by  substance  and 

not  form  of  contract  of  carriage,  127-130. 

INTERSTATE  COMMERCE  COMMISSION. 

Act  creating  constitutional,  116,  117,  118,  119,  567. 
Address  of,  399. 

Administrative   functions,  311,  567. 
Appointment  and  duties,  312,  564,  565,  638. 
Can  not  act  without   full   hearing,   355. 
Carriers   must  report  to,   363,   620. 
Conference,   ruling   of,   copied,   779   to   942. 
Explanation   of,   779. 
Why  inserted,  VI. 

Courts  of  United  States  ma,y  enforce  orders  of.  354,  413. 
Damages,  may  award,  329.  374,  375,  376,  596,  840-842. 
Duties  under  anti-trust  laws,  712. 

Duties  with  reference  to  schedules  of  rates,  326,  327,  519-528,  835, 
836. 


General,  Index.  1023 

[References   are   to   pages.] 

INTERSTATE   COMMERCE   COMMISSION-Continued. 

Effect  to  be  given  by  courts  to  orders  of,  354.  355,  360    419    582 
583. 

Effect  to  be  given  by  courts  on  orders  of  reparation,  427-430,  GO'S. 

Enumeration  of  powers  not  exclusive,  359,  360,  596. 

Flexible  limit  of  judgment,  may  exercise,  218. 

Force  of  Orders,  419. 

Forms  of  procedure  prescribed  by,  399-401,  616. 

General  powers  of,  133,  564,  565. 

Has  power  to   make   regulations,   which   carriers   must   obey,   355, 
578. 

Investigations  by,  136,  350,  354,  377.  381,  575,  585. 

May  employ  agents  and  examiners,  360,  364,  626. 

May  employ  attorneys,  360,  609,  626. 

May  fix  division  of  joint  rates.  211,  584,  585. 

May  grant  rehearings,  387,  398,  611. 

May  invoke  aid  of  courts  of  United  States  to  enforce  act  to  regu- 
late commerce,  354,  413,  565.  610,  625.      . 

May    make    investigations    without    complaint,    136,    350,    354,    377, 
381,  575,   576,  585. 

Ma,y  prescribe  rates,   rules  and  practices   for  the   future,   354,  355. 
578. 

May  require  the  establishment  of  through  routes  and  joint  rates, 

252-259,  316,  358. 
May  suspend  or  modify  its  own  orders,  312,  360,  583,  584,  608. 
Must  make  annual  reports  to  Congress,  312,  631. 
No  jurisdiction  to  award  damages  or  set-off  against  shipper,  329. 
Not  a  court  of  law,  310,  369. 
Ofiice  of,  363,  390,  614. 
Official  seal  of,  387. 
Orders  of  effective,  when,  583,  584. 
Orders  of,  how  served,  312,  387,  608. 

Orders  of,  set  aside,  for  what  reasons,  355,  418,  583.  584. 
Outlook  of,  broad,  432. 
Powers   of,   133,   310.  311.   359,   564.   565. 
Power  to  make  a  valuation  of  railroads,  311,  361,  615-620. 
Power   to   prescribe    rates,    rules   and    regulations    for   the    future, 

310,  578. 
Power  to  relieve  from  long-and-short-haul   clause,  370,  513. 
Power  to  suspend  increase  in  rates,  137.  357,  382,  585,  586,  587. 
Principal  office  of,  311,  363,  390,  614. 
Procedure  not  technical,  224,  378,  573,  574. 
Procedure  of,  133,  134,  135,  377,  613. 
Punishment  for  disobedience  to  orders  of,  608. 
Reports  on  investigations,  576. 
Reports  to  Congress  by,  312,  365.  617.  631. 
Records  of,  evidence,  361.  611. 


1024  General  Indi^x. 

[References   are   to   pages.] 

INTERSTATE   COMMERCE   COMMISSION— Co;(/nn/^rf. 
Rules  of  procedure  prescribed  by,  390. 
Salaries  and   expenses   of,   311,   613,   614,   638. 
Service  of  orders  of,  312,  608. 
Suits  against  to  be  expedited,  646. 
Suspend  increases  in  rates,  137,  357,  382,  585,  586. 
Technicalities,  not  bound  by,  224,  378,  573,  574. 
Tests  to  determine  validity  of  orders  of,  89, 
Venue  of  suits  to  set  aside  orders  of,  656. 
When  can  compel  attendance  of  witnesses,  350-353. 
When  orders  take  effect  and  how  long  continue,  583,  584. 
Who  may  make  complaints  before,  571. 
Who  prosecutes  for  violations  of  orders  of,  609. 

INTERSTATE  RATES. 

May   not   be   reduced   below   what   is  just,   because   of  lower   state 

rates,  115. 
Not  to'  be  defeated  by  rebilling  at  State  line,  71,  457. 
When   higher   than    intrastate    rates,    carriers    can   not   always    in- 
crease,  383-386. 

INTERSTATE  TRANSPORTATION. 

Not  changed  by  mere  form  of  billing,  70,  127,  129,  130. 

Subject   to   regulation   by   Congress   alone,   4,   43,   70,   75,   113,   303, 

451. 
When  it  begins  and  ends,  70. 

INTRASTATE  COMMERCE. 

Not  included  in  act  to  regulate  commerce,   114,   127,  458. 

INTRASTATE  RATES. 

Effect  of  lower,  on  right  to  increase  interstate  rates,  383-386. 

Illegal  to  use  for  interstate   shipment,   71,  457. 

May   not   discriminate   against   interstate   shipper,   6,   75,    115,    131. 

303. 
Save    to    prevent    discrimination,    not    subject    to    Congressional 

regulation,  6,  75,  127,  303,  458,  459. 
States  may  regulate,  73,  458,  459. 

INTRASTATE  TRANSPORTATION. 

Limitation  on  states'  right  to  legislate  concerning,  4,  75,  115,  131, 

303. 
States  may  regulate  through  administrative  bodies,  9. 
Subject  to  state  regulation,  9,  10,  127,  458,  459. 
Whether    a    movement    is    or    is    not    interstate,    determinable    by 

essential  character  and  not  mere  form  of  billing,  70,  127.  129, 

130. 

IOWA. 

Special   freight  classification   in,   272. 


General  Index.  1025 

[References   are   to   pages.] 


IRON. 

Entitled  to  relatively-  low  rates,   164. 


JITNEY. 

A  common  carrier,  461. 

JOINT  RATES. 

Between    rail   and   water    carrier   to    foreign   country   via    Panama 

Canal,  or  otherwise,  518.  546. 
Commission  may  establish,  589. 
Commission   may  prescribe   maximum,   578. 
Divisions  of,  32,  211,  315,  319,  584,  585. 
Notice  of  change,  526. 

Printing  and  posting  of  schedules,  519-526. 
Rail  and  water  carriers,  546. 

JURISDICTION   OF   COURTS   OF   THE   STATES. 
Have  to  enforce  initial  carrier  liability,  405,  406. 
Have  to  enforce  rights  growing  out  of  Safety  Appliance  and  Em- 
ployers' Liability  Acts,  404,  765. 
None  to  enforce  act  to  regulate  commerce,  except  when,  403-406. 
Suits  in  on  awards  of  reparation,  405,-  406,  428,  604. 

JURISDICTION  OF  THE  COURTS  OF  THE  UNITED  ST.\TES. 
Concurrent    with    courts    of   the    states    to    enforce    initial    carrier 

liability,  405-407. 
Have  to  enforce  act  to  regulate  commerce,  411,  412,  625.  644. 
Have  to  enforce  orders  of  commission,  411,  625,  644. 
None  prior  to  action  by  the  commission  to  declare  a  rate  illegal 

which  has  been  regularly  filed  with  the  commission,  133,  134, 

558. 
To  compel   attendance  of   witnesses   l)eforc   commission.   410.   645, 

669. 
To  enforce  awards  of  reparation,  405,  406,  428,  604. 
To  enjoin  an   illegal  advance   in   rates,  414-416. 
To  prevent  departures  by  carriers  from  published   rates,  413,  498. 

JUST  AND  REASONABLE. 
Rates   must  be,   141,  463. 

L 

LAKE  ERIE  &  OHIO  SHIP  CANAL. 

Provisions  of  statute  relating  to,  365,  668,  669. 

LAWFUL. 

Distinguished   from   legal,  471. 

LEGAL. 

Distinguished  from  lawful,  471. 
Rate  filed  is,  543. 

—33 


1026  Gkxl;ral  Index. 

[References   are   to  pages.] 

LEGISLATIVE  FUNCTION. 

Over  rates  different  from  judicial  power,  79,  331. 
Rate  making-  is.  79,  81. 

LESS  THAN  CAR  LOADS. 

Commission   not  inclined  to  compel   differential   between  carloads 

and  less  than  carloads,  199. 
Differential  between  and  carload  legal,  198-202. 
Differential  must  be  without  discrimina:tion,  202,  265,  266. 
Percentage  of  commodities  upon   which   a  differential  exists,  266. 
Principle  of  such  differential  generally  adopted,  266. 
Rule   as   to  when   differential   between   carload   and   less-than-car- 

load   rates  will   be  made.  200,   201,  467. 

LIMITATION  OF  ACTION. 

In  suits  for  damages  under  anti-trust  law.  701. 
In  suits  for  forfeitures  for  rebating.  544. 
In  suits  on  orders  for  reparation,  606,  607. 

On  claims  for  reparation  or  damages  under  act  to  regulate  com- 
merce, 349,  351,  606,  607. 
Under  Employers'  Liability  Act.  764. 

LIQUOR  LAWS. 

Federal  laws,  107,  777. 
State  l^ws,  104. 

LONG  AND  SHORT  HAUL  CLAUSE. 

Amendment  of  1910,  204-209,  264,  504. 

xA.uthorities    on,    summed    up,   207-209,    259-265,    324,    504-512. 

Burden  of  proof  on  carrier  to  show  reasons  for  not  following, 
263,  513. 

Carriers  under  old  law  could  disregard  when  competitive  condi- 
tions justify  without  previous  permission  of  the  commission, 
261. 

Circuitous  route  under,  512. 

Clause  copied  and  annotated,  504-514. 

Commission  alone  authorized  to  permit  relief  from.  370. 

Congress  has  power  to  make  rule  of  absolute,  371. 

Constitutional,  120.  264. 

Damages  for  violating  allowed,  when,  338,  339,  512,  553,  915. 

Discrimination  by  violation  of,  259. 

Discussed,  260-266. 

Enforced  in  Social  Circle  Case,  261. 

History  of,   207-209,  260-266,   323,   504-512. 

In  determining  application  for  relief  from,  reasonal")leness  of  in- 
termediate rates  involved,  209,  371,  512. 

Old  law,  504,  505. 

Procedure  on  applications  for  relief  from,  326,  370,  399,  513. 

Provision  of  relating  to  water  competition,  325.  326,  372,  513. 


Generai,  Index.  1027 

[References   are   to   pages.] 

LONG  AND  SHORT  HAUL  CLAVSE— Continued. 

Relation  of  throtigh  rate  to  intermediate  rates,  204-209,  235.  265, 

504. 
Similar  clause  in  English  law,  234,  505. 
State  laws  on  subject,  92,  93. 

LOSS  AND  DAMAGE. 

Liability  for  to  interstate  shipments  determined  by  laws  of  Con- 
gress, 60,  626-628. 

Limitation  on,  Cummins  amendment.  629,  630. 

Should  be  considered  in  determining  whether  or  not  a  particular 
rate  is  reasonable,  159,  163,  270. 

State  laws  affecting,  58. 

LOTTERIES. 

Regulation  of,  106,  107. 

M 

MANDAMUS. 

Courts  may  enforce  act  to  regulate  commerce  by  writ  of,  138.  411, 
636. 

Courts  of  United  States  may  issue  writ  of,  to  prevent  discrim- 
ination,  636. 

Ma,y  issue  to  prevent  departure  from  published  rate,  636. 

Remedy  by,  cumulative,  637. 

MEAT  INSPECTION  ACT. 

Section  of  relating  to  transportation  copied,  676,  677. 

MEDALS  OF  HONOR. 
Act  providing  for,  746. 

MILEAGE. 

Considered  in  making  rates,  176-178. 

The  greater  the  mileage  the  less  the  rate  per  ton  mile,  176.  177. 

MILEAGE,  INTERCHANGEABLE. 

Contracts  for  may  not  be  compelled,  but  when   issued  subject   to 

regulation,  66. 
Not  illegal,  66,  303,  635. 
Provision  for,  303,  635. 
Sale  of  intrastate  contract  of  regulated  by  state,  67. 

MILLARD,  F.  H. 

Method  of,  of  guaging  rates,  145. 

MILLING  IN  TRANSIT. 

Ideal  under  is  no  substitution,  282.  and  sec  Maley  &  Werts  t.  E. 
&  N.   R.  Co.,  36  I.  C.  C.  657. 

May  be  ordered  established  by  commission  to  prevent  discrim- 
ination, 274,  282. 

Practice  described,  273. 

Practice  legal,  if  not  discriminatory,  274. 


1028  General  Index. 

[References  are  to  pages.] 

MISQUOTING  A  RATE. 

Not  apply  to  teleg-raph   companies.  472. 
.  Penalty   for.   298,   536. 
Shipper  may  recover  for,  when.  296-298,  341,  342.  343. 

MISSIONARY  RATES. 
Defined,  181. 

MONOPOLIES. 

Act  1894  amended  by  act   1913,   702,   703,  704. 

Allegations,  what  required  in  suit  for  damages,  701. 

Annotated  act  prohibiting,  680-722. 

Apiplies  to  carriers,  437,  438. 

Attorneys'  fees  as  part  of  recovery  in   suits  for  damages,   699. 

Clayton  act,  purpose  of,  439. 

Clayton  amendment,  final  judgment  in  prosecutions  or  proceedings 
in  equity  under  prima  facie  binding  in  subsequent  suits,  706, 
707. 

Competitive  bids  required,  when,   711,  712. 

Contempt  of  court,  proceedings  relating  to,  719,  722. 

Damages  for  violating,  measure  of,  698,  699,  706. 

Directors  when  not  to  serve  in  different  corporations,  708,  709. 

District   court  jurisdiction   to   grant   injunction,   695. 

Discrimination  in  prices  prohibited,  705,  706. 

Effect  of  amendment  granting  Interstate  Commerce  Commission 
right  to  suspend  rates  on  consideration  given  by  Commission 
to  increase  of  by  a  carrier,  170,  680. 

Enjoin  violations  of,  courts  may,  695. 

Exclusive  contract  between  telephone  companies  legal,  438,  439. 

Federal  Reserve  Board,  duties  under,  712. 

Federal  Trade  Commission,  duties  under,  712. 

Federal  Trade  Commission  Act  not  to  affect,  712. 

Final  judgment  in  prosecutions  and  government  suits  under  Clay- 
ton amendment  prima  facie  binding  in  subsequent  suits,  706, 
707. 

Good  will,  sale  of,  valid,  686,  689. 

Guilt  of  corporation  prima  facie  evidence  of  guilt  of  officer,  715. 

Intercorporate  relations  illegal,  707. 

Interstate  Commerce  Commission,  duty  to  enforce  certain  pro- 
visions of  Clayton  act,  712. 

Labor  disputes  not  enjoined,  when,  707. 

Labor  organizations  not  prohibited,  707. 

Limitation,  laws  of  state  where  suit  filed  applies  to  suits  for  dam- 
ages, 701. 

Monopolies   prohibited,   693. 

Parties  to  suits  for  violating  laws  against,  716. 

Penalties  for  violating  anti-trust  laws,  680.  ' 

"Person"   includes   corporation,   702. 


General  Index.  1029 

[References   are   to   pages.] 

MONOPOLIES— CoH/u/Hcrf. 

Private  'persons  may  obtain  injunctive  relief,  716. 

Prohibition  of  resale  prices,  when,  686,  687,  689,  692,  70."),  706. 

Property  seized  and  forfeited,  when.  698. 

Punishment  of  corporate  officers,  710,  715. 

Resale  price  fixing  illegal,  686,  687,  689,  692,  705,  706. 

Restraining  orders,  procedure,  697. 

Rule  of  reason  applied,  691. 

Subpoenas  may  be  served  on  parties  in  any  district,  715. 

Territories,  anti-trust  laws  apply  to,  694. 

Venue  of  suits  under,  anti-trust  laws,  715. 

Violations  of,  Statutes  against  considered  in  determining  whether 

or  not  a  rate  is  reasonable,  170,  680. 
What  combinations  included  in  prohibition  of,  680. 
Witnesses  may  he  required  to  attend  court  in  districts  other  than 

their  residence,  in  suits  under  laws  against.  715. 

N 

NEGLIGENCE,  CONTRIBUTORY. 

Damages  to  be  diminished  when  employee  guilty  of,  764. 
Not   a   bar   to   recovery   for   damages   under   Employers'    Liability 
Act,  764. 

NEGROES. 

Equal  accommodations  must  1)e  accorded,  51. 

Laws  separating  from  whites  in  passenger  coaches.  50. 

State  laws  requiring  negroes  to  be  carried  with  whites  invalid  as 

to  interstate  commerce,  50. 
State  laws  separating  from  whites  in  passenger  coaches  valid  as 

to  intrastate  travel,  51. 

NORTH   CAROLINA. 

Special  freight  classification  in,  272. 

0 

OFFICERS. 

When  acts  of,  bind  corporation.  543. 

OFFICIAL  CLASSIFICATION. 

Territory  covered  by  described,  272. 

OIL. 

Transportation  of  included  in  act  to  regulate  commerce,   123,  451. 

OPERATING  EXPENSES. 

Division  of  l)etween  freight  and  passenger  traffic,  86,  87,  88. 
Division  of  between  state  and  interstate  traffic,  86,  87,  88. 


1030  General,  Index.    • 

[References   are   to   pages.] 

OPPOSITE  DIRECTIONS. 

Dififerent   rates  in,   over   same   line   require   explanation   from   car- 
rier, 300. 
Rates  over  same  line  in,  may  differ,  298-300. 

ORDERS  OF  THE  INTERSTATE  COMMERCE  COMMISSION. 
Application  for  rehearing  does  not  stay,  611. 
Applications   for   suspension   or   annulment,   to   be   expedited,   646, 

661. 
Carriers  must  comply  with,  418. 

Commission  may  make  an  award  of  damages.   330,   596. 
Commission  ma,y  suspend  or  modify,  312,  360,  608,  612,  619. 
Competition  between  rail  and  water  carrier  to  be  final,  517. 
Continue  in  force  two  j^ears  unless  changed,  set  aside  or  annulled, 

583. 
District  courts, to  enforce,  657. 

Enforcement  of  order  for  payment  of  money,  330,  604. 
Enforcement  of  physical   connection,   Panama   Canal,   545,  546. 
Failure  to  comply  with,  536. 

Informal  complaints  for  damages  before,   840-842. 
Mandamus  to  enforce  against  Government-aided  lines,  665. 
Payment  of  money,  330,  427,  576. 
Prescribing  maximum  charges,  578. 
Reparation    orders    and    orders    prescribing    rates    contrasted,    79, 

310,  331,  428. 
Report  in  writing  stating,  576,  577. 

Set   aside  because   full   hearing  not  accorded,  419,  426,   427. 
Set  aside  because  in  substance  violates  the  law,  419,  425. 
Set  aside  because  not  within  jurisdiction,  419,  423,  424. 
Set  aside  because  of  disregard  of  undisputed  testimony,  419,  425. 
Set  aside  because  of  mistake  of  law,  419,  422,  423,  424. 
Set  aside  by  courts  because  violative  of  the  Constitution,  419,  420, 

421. 
Service  of  Commission's  on  agent  in  Washington,  608. 
Shall  continue  in  force  two  years,  583. 
Shall  take  effect  within  reasonable  time,  583. 
Supplemental  orders,  584. 

Suits  on  awarding  damages,  404,  428,  429,  604. 
Suspension' or  anulment,  619,  656,  657. 
Switch  connection,  enforcement  of,  477. 
Venue  in  suits  to  set  aside,  418,  656. 

OVERCHARGE. 

Award   for   by   commission  after   hearing,   330,   428,   429,   547,   548. 

596. 
Claim  for  assignable,  345,  911. 
Claim  for  may  be  compromised,  552,  553. 


General  Index.  1031 

[References  are  to  pages.] 

OVERCHARGE— Continued. 

Claims  for,  should  be  made  in  original  complaint  to  commission, 

375,    550,   553. 
Commission  can  not  award  set-off  against  claim  for,  329. 
Courts  can  not  prior  to  determination  by  commission  decree  that 

a  regularly  filed  rate  constitutes  an,  133,  134,  558. 
F.  O.  B.  shipper  can  not  recover  for,  345. 

Full  amount  of,  fixed  as   measure   of  damages,  330,  547,   548,   596. 
Illegal  at  common  law,  140,  141. 
Informal  complaints  for,  840-842. 
Limitation  on  claims  for,  349,  350,  351,  606,  607. 
Order  of  commission   fixing  amount   of  prima   facie   correct,   330, 

427,  428,  556. 
Parties  to  suits  to  recover,  430,  548,  604. 
Prohibited  by  act  to  regulate  commerce,  463. 
Protest  not  necessary  to  a  recovery  of,  346,  551,  574. 
Remedy  for  inadequate.  348. 

Suit  in  courts  on  award  for,  404,  428,  429,  430,  548,  604. 
What  carriers  liable  for,  345. 
When  a  cause  of  action  accrues  for,  350. 
Who  ma}'  recover  for,  343,  547. 

P 

PANAMA  CANAL. 

Act  relating  to,  516-519. 

Corporation  violating  anti-trust  act  not  to  use,  519. 

Through  routes  with  water  carriers  through.  519. 

Via,  from  port  in  United  States  to  foreign  country,  546. 

PANAMA  CANAL  ACT. 
Carriers,  519. 
Gives   Interstate   Commerce   Commission  jurisdiction   over   water 

carriers,  519. 
"Or  otherwise"  in,  defined,  213.  316. 
Purpose  of,  518. 
Through  routes  with  all  water  carriers  provided  for  in  act,  546. 

PARCEL  POST  LAW. 

Interstate  Commerce  Commission,  duties  under,  367. 
Statute,  669. 

PARTIES. 

All  to  an  award  for  damages  may  sue  as  joint  plaintiffs.  608. 
Rule  adopted  by  commission  with  reference  to,  390. 
Who  may  be  defendants  in  suits  to  enforce  act  to  regulate  com- 
merce, 643,  644. 

PARTY  RATE  TICKETS. 
Defined,  66,  304,  636. 
Legal,  304. 


1032  General  Index. 

[References  are  to  pages.] 

PASSENGER  FARES. 

Interstate  not  to  be  measured  by  state  fares,  115,  384. 
Must  be  paid  in  mone,y,  69,  301. 

PASSENGERS. 

Fare  of,  payable  in  cash  only,  69,  301,  846. 

Interstate   contract   of,   not   subject   to  state   regulation,   65. 

Sale  of  tickets  to,  may  be  regulated  by  states,  63. 

Separation  of,  50. 

State  laws  for  security  of,  31,  53. 

PASSES. 

Interchange  of.  472,  473,  476,  940. 
Prohibited  and  exceptions,  68,  472,  631,  632. 
State  may  not  compel  grant  of,  65,  68. 

PEDDLER  CARS. 
Defined,  243. 
Not   unlawful,   244. 

PENALTIES  FOR  VIOLATION  OF. 

Act  to  regulate  commerce,  136,  559-564,  666. 

PENALTY  RATES. 
Disapproved,  205. 

PERSONS. 

Discrimination  against,  illegal,  245,  255,  256. 
Includes  corporation   in   anti-trust  act,  702. 

PETITION. 

Complaints  to  commission  by,  390,  571. 
Shall  state  facts  briefly,  391,  571. 

PHILIPPINE  ISLANDS. 

Anti-trust  act  does  not  apply  to,  705. 

PILOTAGE. 

States  may  regulate,  101. 

PIPE  LINES. 

Act  as  relating  to  valid,   123,  451. 

Subject  to  act  to  regulate  commerce,  123,  451. 

PLEADING. 

Answers,  393. 

Complaint  to  commission  by  petition,  391,  571. 

Informal,  840-842. 

Propriety  of  new  rates  determined  witliout   formal,  578. 

POLICE  POWER. 

Of  state,  discussed,  3. 


General  Index.  1033 

[References  are  to  pages.] 

POOLING  FREIGHTS. 
Illegal,  514. 

Not  illegal  under  Canadian  law,  al-t. 
Not  illegal  under  English  law,  514. 
Objects  of  section  against,  167. 

PORTS. 

States  may  regulate,  101. 

PREFERENCE. 

Interchange  of  traffic  must  he  without,  252-255,  501-504. 

Length  of  time  that  has  existed  will  not  legalize,  497. 

Military  trafific  may  have,  535. 

Not  undue  or  unreasonable  when  circumstances  are  different,  232, 

484,  486,  496. 
Owner  of  private  wharf  may  give,  256. 
Prohibited  by   English   law.   479,  480,  488,  489. 
Undue  and  unreasonable  prohibited,  232,  484,  486,  496. 

PRESIDENT. 

May  remove  Interstate  Commerce   Commissioner,  564,  638. 
To  appoint   Interstate   Commerce   Commissioners,   564,  638. 

PRESUMPTION. 

Rates   advanced   as    result   of   combination   prima   facie    unreason- 
able, 167. 
Rates  long  in  existence  presumed  to  be  reasonably  high,  183,  186. 
These  presumptions  not  conclusive,   186. 

PRINCIPLES  OF  RATE  MAKING. 

Amount  of  tonnage,  173,   174,   175,   176,  467. 

Basing  point  system,  192,  193,  301,  500. 

Business   conditions,   178-180. 

Carloads  or  less-than-carloads,   199-204,  265. 

Car-mile  and  train-mile  earnings  considered,  177. 

Classification  of  .commodities  necessary,  74,   142,  421,  422. 

Comparisons  between  rates  on  different  lines,  177,  197,  198,  468. 

Competition  or  its  absence,  165. 

Contracts   for   rates   not;  to   control   rate-making   bodies,   183,   499. 

Cost  of  carriers'  equipment  of  little  value  in  fixing  express  rates, 

150. 
Cost  of  service,  145,  153,  219,  222,  470. 
Danger  of  loss  and  damage,  159,  163,  164. 
Density  of  all  trafific  of  carrier  considered,   173,   176,  467. 
Density  of  traffic  of  a  particular  commodity  considered,   173,   174, 

175. 
Discussion  of  general  principles  relating  to  rate   making.  216-227. 
Distance  of  a  factor,  176,   IIH). 

Distance  and  rate  per  ton-mile.  176,   177,  178,  466,  483,  4'.»(). 
Empty  haul  of  equipment.   178. 


1034  Genekal  Index. 

[Rtferences  are  to  pages.] 

PRINCIPLES  OF  RATE  MAKING— Continued. 

Estoppel  not  to  be  applied,  181. 

General  principles  stated,  216-227. 

Grouping  territory,  188,  190,  301,  500. 

Hazard  to  shipments  considered,  159,  163,  164. 

Import  rates  may  be  less  than  domestic,  282,  483. 

Long  existence  of  a  particular  rate,   183,  184,  185,  186. 

Must  consider  cost  of  carrier's  equipment,   146-148. 

Not  determined  by  ability  or  lack  of  to  pay,  181. 

Problem  difficult,  142,  320.  225. 

Public  interest,  215,  222. 

Rate  breaking  at  rivers,  194,  195. 

Rates   long  in   existence   presumed   as   against   carrier   to   be   rea- 
sonable, 183-186. 

Rates  not  to  be  limited  to  actual  cost.  157,  158. 

Rate  making  different  from  awarding  damages,  428. 

Rates  must  be  just  and  reasonable,  140,  463,  479;  488. 

Service   j'ieldingno   profit,   but   causing  a   loss,   may   be    required 
of  a  common  carrier,  154. 

Test    of    a    rate    best    method    of    determining    reasonableness    of, 
89,  90. 

The  rule,  the   greater  the  distance   the  less  the   earnings  per  ton 
mile,  176-178,  466,  483,  490. 

Through  rates  and  local  rates,  204.  481. 

Train-load  rates,  203,  482. 

Use  of  commodity  not  to  control,  161.  162,  482,  499. 

Value  element  can  not  be  too  much   refined,  160. 

Value  of  the  commodity,  its  utility,  159,  163,  164. 

Value  of  service,  158-161,  219,  222. 

Value  of  the  commodity  must  be  considered,  158,  159,  163. 

Voluntary  reductions  of  rate  considered,  187. 

What  is  a  just  and  reasonable  rate  not   easily  determinable.   142, 
220,    225. 

What  the  traffic  will  bear  not  a  fair  basis,  247. 

Zone  system  adopted.  190,  191. 

PROCEDURE      BEFORE     THE     INTERSTATE      COMMERCE 
COMMISSION. 
Address  of  Interstate  Commerce  Commission,  399. 
Amendments,  394. 
Answer,  form  of,  401. 
Answers  should  be  specific,  379. 
Answers  to  complaints  before,  393. 

Any  person  interested  in  proceedings  may  intervene,  379. 
Applications   under   long-and-short-haul    clause,   399. 
Briefs.  397. 

Commission   has   power  to   prescribe   methods   of,   390,   613. 
Commission  may  act  without  complaint,  when,  575,  585. 


General  Index.  1035 

[References  are  to  pages.] 

PROCEDURE      BEFORE     THE      INTERSTATE     COMMERCE 
COMMISSION— Continued. 
Complainant,  unlike  in  a  court  of  equity,   need  not  be  free  from 

fault,  380. 
Complaints  before,  379,  391. 
Complaints,  form  of,  399,  400. 
Complaints    not    to    be    dismissed    because    of    complainant's    lack 

of  interest,   380,   573.   574. 
Continuances,  394. 

Copies  of  testimony  and  papers,  how   furnished,  398. 
Demurrer   or   motion   to   dismiss,   form   of,   401. 
Demurrers,  393,  401. 

Depositions  may  be   taken   on   hearing  before,   394,   393,   569. 
Documentary  evidence,  396,  611. 
Fourth  section  relief,  399. 

Full  hearing  must  be  granted,  419,  426,  427,  578,  586. 
Hearings,  380,  394. 
Information  to  parties,  399. 
Joinder  of  actions  in  complaints,  375,  376. 
Must  be   notice  before  hearing,  378,  379. 
Not  technical,  224,  378,  573,  574. 
Oral  argument,  388,   397. 
Orders  continue  two  years,  583. 
Parties,  390. 
Printing  briefs,  397. 
Rehearings,  387,  398. 

Res   adjudicata,   rule  as   to,   not   applied,   385,   389. 
Service   of  papers,  393. 

Service  of  orders  of  the  Commission,  387,  398. 
Sessions  public,  391. 
Stare  decisis  not  followed,  385,  387. 
Statute  relating  to,  390,  613. 
Stipulations,  394. 
Suspensions  of  rate  increases,  how  obtained,  382,  383-386,  399,  898, 

899. 
Transcript  of  evidence  free,  398. 
Valuation  of  railroads,  procedure  in  making,  388. 
Witnesses  and   subpoenas,  396,   569. 

PROPORTIONAL  RATE. 
Defined,  205,  891. 

Different  depending  on  point  of  origin,  282,  493,  499. 
Rules   applicable    to,   206. 
When  to  and  from  ports,  546. 

PROSPERITY. 

In   times   of,   carrier   may   restore    rates   tliat    had   <leclincd    under 

commercial  conditions,  179. 
Of  shipper,  carrier   can   not   absorl),    179. 


1036  General  Index. 

[References  are  to  pages.] 

PROTEST. 

Not  necessary  before  recovering  for  overcharge,  346,  551,  574. 

PUBLIC  INTEREST. 

Must  be  considered  in  fixing  charges  of  public   corporations,  215, 
222. 

PUBLISHING  TARIFFS. 
Duty  of  carriers  to,  519. 
Thirty  daj'S  notice  of,  527. 
Time  of  notice  of  may  be  shortened,  527. 

Q 

QUARANTINE. 

Duty    of    Secretary    of    Agriculture    to    prescribe    regulations    for 

transporting-  cattle    from    quarantine   territory,   437,   677. 
Illegal   to   transport   cattle   from   quarantine   territory,   when,   436, 

677. 
Penalty  for  violating  Federal  law.  436. 
State  laws  requiring,  104. 

R 

RACES. 

Laws  of  states  separating  white  and   negro,   50. 

RAILROAD. 

Defined.   14,   459,   460,   766. 

State,   commissions,   complaints   by,   575. 

RAILROAD   CROSSINGS. 

Speed  of  train  slackened  at,  40. 
States    maj'   regulate,    29. 

States   may  require  whistle   blown  and   speed   of  trains   slackened 
at,  29,  40. 

RATES. 

May  not  be  required  to  be  less  than  reasonable  to  conserve  pub- 
lic interests,  157,   158. 
Regulation  of,  of  common  carriers  by  states,  when,  8,  73,  78,  458. 
Relationship  of  interstate  and  intrastate  as  affecting  right  to  in- 
crease the  former,  383,  386. 
State-made  rates  must  not  be  confiscatory,  7,  76-86. 
Suspension  of  increases  in,  137,  357,  382,  585,  586. 
Suspension   of,   limited   to  ten   months,   586. 
Testing  to  determine   reasonableness  of,  89. 

RATE  IN  AND  OF  ITSELF. 

Can  rarely  determine  whether  or  not  reasonable,  223. 


General  Index.  1037 

[References  are  to  pages.] 

RATE  JUDGING. 

By  comparisons,  196,  197. 

Commission  may  exercise  a  flexible  limit  of  judgment  in,  218. 
Presents    a    different    question    from    that    presented    in    making 
rates,  78-80. 

RATE  MAKING,  PRINCIPLES  OF. 

Amount  of  tonnage,   173,  174,  175,   176,  467. 

Basing  point  system,  192,  193,  301,  500.  ; 

Business  conditions,  178,  179,  180. 

Carloads  or  less-than-carloads,  199-204,  265. 

Car-mile  and  train-mile  earnings  considered,  177. 

Classification  of  commodities   necessary,  74,   142,  421,   422. 

Comparisons  between  rates  on  different  lines,  177,  197,  198, 
468. 

Competition  or  its  absence,  165. 

Contracts  for  rates  not  to  control  rate-making  bodies,  183,  499. 

Cost  of  carriers'  equipment  of  little  value  in  fixing  express  rates, 
150. 

Cost  of  service,  145,  153,  219,  222,  470. 

Danger  of  loss  and  damage,   159,  163,  164. 

Density  of  all  traffic  of  carrier  considered,  173,  176,  467. 

Density  of  traffic  of  a  particular  commodity  considered,  173.  174, 
175. 

Discussion  of  general  principles  relating  to  rate  making,  216-227. 

Distance  a  factor,  176,  190. 

Distance  and  rate  per  ton-mile,  176,  177,  178,  466. 

Empty  haul  of  equipment,  178. 

Estoppel  not  to  be  applied,  181. 

General  principles  stated,  216-227. 

Grouping  territory,  188,  190,  301,  500. 

Hazard  to   shipments   considered,  159,  163,   164. 

Import  rates  may  be  less  than  domestic,  282,  483. 

Long  existence  of  a  particular  rate,  182,  183,   184,  185,   186. 

Must  consider  cost  of  carriers'  equipment,  146-148. 

Not  determined  by  ability  or  lack  of  to  pay,  181. 

Problem   difficult,   142,  220,  225. 

Public  interest,  215,  222. 

Rate  breaking  at  rivers,  104,   195. 

Rates  long  in  existence  presumed  as  against  carrier  to  l)e  reason- 
able,  183-186. 

Rates  not  to  be  limited  to  actual  cost,   157,   158. 

Rates  must  be  just  and  reasonable,  140,  463,  479.  488. 

Service  yielding  no  profit,  but  causing  a  loss,  may  be  required  of 
a  common  carrier.  154. 

Test  of  a  rate  l)est  method  of  (ii-tcrniining  reasonableness  of. 
89,  90. 


10v>8  General  Index. 

[References  are  to  pages.] 

RATE  MAKING,  PRINCIPLES  OF— Continued. 

The  rule,  the  greater  the  distance  the  less  the  earnings  per  ton- 
mile,   176-178,  466,  483,  490. 

Through  rates  and  local   rates,  204,   481. 

Train  load  rates,  203,  482. 

Use  of  commodity  not  to  control,  161,  162,  482,  499. 

Value  element  can  not  be  too  much  refined,  160. 

\'alue  of  the  commodity,  its  utility,  159,  163,  164. 

\'alue  of  service,  158,  159,  160,  219,  222. 

Value  of  the  commodity  must  be  considered,  159,  163. 

Voluntarj^  reduction   of  rate  considered,   187. 

What  is  a  just  and  reasonable  rate  not  easily  determinable,  142, 
220,  225. 

What  the  traffic  will  bear  not  a  fair  basis,  217. 

Zone  system  adopted,  190,  191. 

RATES  FOR  TRANSPORTATION  MUST  BE  REASONABLE. 
Common  law  required  that,  140. 

Required    because    common    carriers    engaged    in    a    ])usiness    af- 
fected with  a  public  interest,  140,  141. 
Required  by  Act  of  Congress,  463. 

RATES,  JOINT,  AND  THROUGH  ROUTES. 

Commission  may  fix  division  of  joint  rates,  32,  211,  315,  319,  584. 
585. 

Commission  may  require  establishment  of,  32,  211,  316,  354,  578, 
589. 

Indemnity  may  be  required  of  irresponsible  carriers  before  order- 
ing, 27,  212. 

None  required  prior  to  1906  when  a  reasonable  already  existed, 
211,  212. 

REASONABLE  CHARGES. 
Burden  of  proof,  587. 

Commission  to  determine  reasonableness,  578. 
Lake  Erie  &  Ohio  River  Ship  Canal,  365,  668,  669. 
Must  be  charged,  140,  463,  479,  488. 
Order  of  Commission  prescribing,  583. 

REBATES. 

Corporation  may  be  guilty  of  crime  of  giving,  306.  538. 

Defined,  304,  541. 

Each  payment  of  a  separate  ofifense,  541,  542. 

Equitable  proceedings  against  giving,  644,  645. 

Forfeiture  for  giving,  in  addition  to  penalties,  538,   543. 

Form   of  granting  immaterial,   305. 

Giving  prohibited,  538. 

Limitations  on  actions  for  penalties,  544. 


General  Index.  1039 

[References  are  to  pages.] 

REBATES— CoHtiuued. 

Law  against  applies  to  demurrage  charges.  30.5. 
Punishment  for  giving,  538. 
Venue  of  prosecutions  under,  30."). 

REBILLING. 

Defined,  275,  376. 

May  violate  fourth  section,  279. 

Practice  of  may  he  unlawful.  277. 

Rebilling  rate  compared  with  local  rate.  280. 

Sometimes   designated  as   '"Reshipping."  280. 

Unlawful  only  when  discriminatory.  277-280. 

RECEIPT  OF  INTERSTATE  FREIGHT. 
Congress  alone  may  regulate,  47. 

RECEIVERS. 

Accounts   of,  624.  I 

Duties  of,  under  arbitration  act.  772. 

Valuation  section  of  act  to  regulate  commerce  applicable  to,  619. 

REDUCTION  IN  RATES. 

Interstate  Commerce   Commission  may  require.   354,   587. 
Lake  Erie  &  Ohio  Ship  Canal,  668,  669. 
To  meet  competition  of  water  route,  513. 

REHEARINGS. 

Application  for,   shall   not   excuse   compliance   with   order.   611. 
Commission  may  grant,  383,  611. 

REFRIGERATION. 

Charges  for  must  be  reasonable,  213. 
Included  in  term  transportation,  459. 

REPARATION. 

Advancing  a   rate  awarded  for,  when,   552. 

Amendment  of  claims  for  may  be  allowed,  559. 

Assignment  of  claims  for,  345,  911. 

Attorneys'  fees,  347,  348,  547,  548. 

Award  by  commission  after  hearing,  330.  547,  559,  596.  604. 

Awards  of  for  discriminatory   charges,   334-338. 

Awards  of  for  unreasonable  charges,  331,  332. 

Awards  of  for  not  plainly  stating  rate,  525. 

Award  of  prima  facie  evidence  in  courts,  330,  427,  428,  558,  605. 

Claims  for  may  be  compromised,  552,  553. 

Claim   for  should  be  made   in   original   complaint   to   Commission. 

375,  550,  553. 
Commission    no   autliority   to   award   a    set-off   against   a    shipper. 

329. 
Commission    no   authority   to   award    for   brearli    of  contract.   320, 

557. 


10-W  General  Index. 

[Reterences  are  to  pages.] 

REPARATION— Continued. 

Complainant  must  show  that  lie  is  damaged.  333,  334,  376,  5,54, 
555. 

Courts  may  not  award  for  charging  an  unreasonable  rate  pre- 
scribed in  a  regularly  filed  tariff  prior  to  action  by  commis- 
sion, 133,  134,  558. 

Courts  may  award  after  the  Commission  has  declared  a  rate  un- 
lawful, 429,  558. 

Damages  used  interchangeably  with  reparation,  334,  338. 

Delivery,  failure  to  make,  not  ground  for,  552. 

Discrimination,  undue,  allowance  for,  334,  559,  563. 

F.    O.   B.   shipper   can   not   recover,   345. 

Full  amount  of  overcharge  may  be  recovered  as,  330,  547,  548,  596. 

Initial  carrier  liable  on  through  shipment,  626-628. 

Informal  complaints  for,  349.  375,  840-842,  925,  926. 

Interest  allowed,  347,  936. 

Joint  liability  of  carriers,  345,  346. 

Limitation   on  claims  for,  349.  350,  351,  606.  894. 

May  be  awarded  for  misrouting,  339,  340.  552. 

May  recover  for  violation  of  Sec.  6.  557. 

May  sue  on  order  for  in   Federal  or  state  court,  404,  428,  604. 

Measure  of,  550,  553. 

No  recovery  of  for  misquoting  a  rate  prior  to  act  1910.  135,  296, 
297,  551,  552. 

Now  may  recover  for  misquoting  a  rate.   135,  342,  536. 

None  allowed  for  violating  4th  section  while  application  for  re- 
lief under  is  pending,  338,  339,  512,  553,  557,  915. 

Order  of  commission  for  prima  facie  proof  of  right  to.  330.  427, 
428,  556. 

Parties  to  suit   for.  430.  548.  604. 

Procedure  on  complaints  for.  374,  375,  376,  485,  548,  604. 

Profits  may  be  recovered,  550. 

Protest  not  necessary  before  recovery  of  for  charging  unreason- 
able rate,  346,  551,  574. 

Rebate  to  one  not  measure  of  damage  to  another,  335,  556. 

Remedy  for  inadequate  for  charging  unreasonable  rate.  348. 

Right  to,  assignable,  345,  911. 

Suit  in  courts  on  award  of,  404,  428,  429,  430,  548,  604. 

Tort,  Commission  not  to  allow  for,  549. 

Transit,  failure  to  accord,  557,  558. 

Violation  of  statute  authorizes  award,  547,  557. 

What  carriers  liable  for  overcharge,  345.  549. 

When  a  cause  of  action  accrues  for.  350. 

Where  to  sue  for,  548. 

Who  may  recover  for  overcharge,  343. 

REPORTS  OF  CARRIERS. 

As  to  value  of  property,  may  be  required.  620. 


General  Index.  1041 

[References  are  to  pages.] 

REPORTS  OF  CARRI-ERS— Continued. 

Carriers'  engineer's  reports  to  be  furnished  to  Commission,   617. 
Commission   m.a,y   require   and   prescribe   method   of  making,   138, 

620-623. 
Government-aided   lines,   664. 
Monthly,  of  earnings  and  expenses,  621. 
Special  or  periodical,  620,  621. 
Statistics  in,  are  public  records,  611. 
To  be  filed  by  September  30  of  each  year,  620. 
To  be  filed  within  three  months  after  end  oi  fiscal  year,  621. 

REPORTS   OF   INTERSTATE  COMMERCE  COMMISSION. 
Annual — 

To  Congress,  531. 

Printed   for   distribution,   576. 
Competent   as   evidence,   611. 
Concerning  valuation  work,  617. 
Must  be  entered  of  record  and  furnished  parties,  576. 

RESHIPPING. 

Defined,  275,  276. 

May  violate  fourth  section,  279. 

Practice  of  unlawful  when,  277. 

Rebilling  rate  compared  with  local  rate,  280. 

Sometimes  designated  as  "Rebilling,"  280. 

Unlawful  only  when  discriminatory,  277-280. 

RETURNED  SHIPMENTS. 
Less  rate  on  illegal,  214. 

REVENUE  PER  TON-MILE. 
Gross  revenue,   178. 

Gross  revenue  including  empty  car  haul,   178. 
Net  revenue,  177,  178. 

RIGHT  OF  WAY. 

States   may   require   carriers   to   protect   against   injurious   vegeta- 
tion, 30. 

RISK. 

An  element  in  making  rates,  159,  163,  164. 
Release  from  as  aflfecting  rates,  629-631. 

ROUTING  FREIGHT. 

Must   route   by   intrastate   route   when   rate   thereover   lower   tiian 

rate  over  interstate  route,  340. 
Rule  as  to,  293,  592,  593. 
State  no  power  over  when  transportation  interstate.  69. 

RULES  OF  COMMISSION. 

Commission's  rules  to  have  full  force  of  law,  310,  390,  613. 
Rules  of  procedure,  390-401. 


1042  General  Index. 

[References  are  to  pages.] 

s 

SAFETY  APPLIANCE  ACTS. 

Act  relating-  to  transportation  of  explosives,  754-756. 

American  Railway  Association,  duties  under,  736. 

Ash  pan  act,  752,  753. 

Assumption  of  risk,  737,  764. 

Automatic  couplers,  735. 

Boiler  inspection,  757-762. 

Carriers  subject  to  acts,  740.  753,  757. 

Cars  of  connecting  lines  refused,  735. 

Chains,   hauling  b,y,  742. 

Commission  to  designate  appliances,  741. 

Compliance  with  act,  time  for,  743. 

Courts   of  states  and   United   States   have   concurrent  jurisdiction 
to  enforce,  736. 

Defective  cars  may  be  hauled  to  nearest  repair  point,  741. 

Discussed,  440. 

Drawbars,  737,  738,  741. 

Driving-wheel  and  train  brakes,  735. 

Enforcement  by  commission,  742. 

Exceptions,  738. 

Grab  irons  and  handholds,  31,  736. 

Hours  of  service  of  employees  limited,  440,  749-751. 

Inspectors  provided  for,  743. 

Ladders,  740. 

Liability  of  carriers,  741. 

Penalty  for  violation,  741. 

Percentage  of  train-braked  cars,   738. 

Power   brakes,   739. 

Running  boards,  cars  to  be  equipped  with,  740. 

Sill  steps,  cars  to  be  equipped  with,  740. 
Note:      For  a  recent   construction   of  the   statute   and   an   extension 
of  time  in  which  to  equip  cars,  see  36  I.  C.  C.  370-375. 

SALT. 

Entitled  to  a  relatively  low  rate.  164. 

SCALES. 

Carrier  can  not  be  compelled  to  provide  at  local  stations,  17. 

SCHEDULES  OF  RATES. 

Commission  may  prescribe  forms  of,  327,  528. 

Evidence  when,  611. 

Mistake  in  giving  shipper  not  relieve   carrier   from   charging  full 

rate,  135,  296,  297,  342,  536. 
Must  be  printed,  posted  and  maintained.  294-296,  298,  327,  520. 
Names  of  carriers  parties  to  must  be  specified,  527. 
No  carrier  shall  participate  in  interstate  commerce  without  filing. 

328,   528. 


General  Index.  1043 

[References  are  to  pages.] 

SCHEDULES  OF  RAT-ES— Continued. 

Points  to  which  apply  must  be  stated,  520,  .526. 

Rebate  from  defined,  prohibited  and  punished,  .528. 

Regulation  as  to  printing  and  posting  for  freight  moving  from 
one  to  another  point  in  United  States  through  foreign  coun- 
tries, 526. 

Retroactive  effect  not  to  be  given,  535. 

Rule  that  must  be  printed  applies  to  that  part  of  an  export  or  im- 
port movement  which  is  over  rail  carriers,  294. 

Shall  not  be  changed  without  notice,  327,  373,  526. 

School  children,  special  rules  to,  809. 

Transcontinental  carriers  and  ocean  vessels,  294,  295. 

SECTION  ONE,  ACT  TO  REGUL.\TE  COMMERCE. 
Annotated,  451-479. 

SECTION  TWO,  ACT  TO  REGULATE  COMMERCE. 
Annotated,  479-488. 

SECTION  THREE,  ACT  TO  REGUL.\TE  COMMERCE. 

Annotated,  488-504. 

Prohibits  all  unjust  discrimination,  234,  235.  488. 

State-made  rates  may  violate,  6,  75,  114,  303. 

SECTION  FOUR,  ACT  TO  REGUL.\TE  COMMERCE. 
Annotated,  504-514. 

SECTION  FIVE,  ACT  TO  REGUL-\TE  COMMERCE. 
Annotated,  514-519. 

SECTION  SIX,  ACT  TO  REGUL.\TE  COMMERCE. 
Annotated,  519-547. 

SECTION  SEVEN,  ACT  TO  REGULATE  COMMERCE. 
Annotated,   547. 

SECTION  EIGHT,  ACT  TO  REGULATE  COMMERCE. 
Annotated,  547-559. 

SECTION  NINE,  ACT  TO  REGUL.VTE  COMMERCE. 
Annotated,  548-559. 

SECTION  TEN,  ACT  TO  REGULATE  COMMERCE. 
Annotated,  559-564. 

SECTION  ELEVEN,  ACT  TO  REGULATE  COMMERCE. 
Annotated,   564. 

SECTION  TWELVE,  ACT  TO   REGULATE  COMMERCE. 
Annotated,  565-570. 

SECTION  THIRTEEN,  ACT  To  Rl'GlLATK  COMMERCE. 
Annotated,  571-575. 

SECTION  FOURTEEN,  ACT  TO  REGULATE  COMMERCI'".. 
.\nnotated,  576,  577. 


1044  General  Index. 

[References  are  to  pages.] 

SECTION  FIFTEEN,  ACT  TO  REGULATE  COMMERCE. 
Annotated,  578-596. 

SECTION  SIXTEEN,  ACT  TO  REGULATE  COMMERCE. 
Annotated,  596-611. 

SECTION  SIXTEEN  A,  ACT  TO  REGULATE  COMMERCE. 
Annotated,  611-613. 

SECTION  SEVENTEEN,  ACT  TO  REGULATE  COMMERCE, 
Annotated,  613. 

SECTION  EIGHTEEN,  ACT  TO  REGULATE  COMMERCE. 
Annotated,  613,  614. 

SECTION   NINETEEN,  ACT  TO   REGULATE  COMMERCE. 
Annotated,  614. 

SECTION  NINETEEN  A,  ACT  TO  REGULATE  COMMERCE 
Annotated,  617-620. 

SECTION  TWENTY,  ACT  TO  REGULATE  COMMERCE. 
Annotated,  620-630. 

SECTION  TWENTY  ONE,  ACT  TO  REGULATE  COMMERCE. 
Annotated,  631. 

SECTION  TWENTY  TWO,  ACT  TO  REGULATE  COMMERCE. 
Annotated,  631-635. 

SECTION    TWENTY    THREE,   ACT    TO     REGULATE     COM- 
MERCE. 
Annotated,  636,  637. 

SECTION  TWENTY  FOUR,  ACT  TO  REGULATE  COMMERCE. 
Annotated,  638. 

SERVICE. 

Hours  of  employees  of  carriers  limited,  749-751. 

SET-OFF, 

Commission  no  power  to  allow,  329. 

SHEEP. 

Need  not  he  unloaded  at  night,  673. 

SHERMAN  ANTI-TRUST  AND  CLAYTON  ACTS. 
Act  1894  amended  by  act  1913,  702,  703,  704. 
Allegations,  what  required  in  suit  for  damages,  701. 
Annotated.  680-722. 
Applies  to  carriers,  437,  438. 

Attorneys'  fees  as  part  of  recovery  in  suits  for  damages,  699. 
Clayton  act,  purpose  of,  439. 
Clayton  amendment,  final  judgment  in  prosecutions  and  suits  by 

United  States  under,  prima  facie  binding  in  subsequent  suits» 

706.  707. 


General  Index.  1045 

[References  are  to  pages.] 

SHERMAN  ANTI-TRUST  AND  CLAYTON  ACTS— Continued. 

Competitive  bids  required,  when,  711,  712. 

Contempt   of  court,   proceedings  relating  to,   719-722. 

Damages   for  violating,   measure   of,  698,  699,  706. 

Directors  when  not  to  serve  in  different  corporations,  708,  709. 

District  court  jurisdiction  to  grant  injunction,  695. 

Discrimination  in  prices  prohibited,  705,  706. 

Efifect  of  amendment  granting  Interstate  Commerce  Commission 
right  to  suspend  rates  on  consideration  given  by  Commission 
to  violation  of  by  a  carrier,  170,  680. 

Enjoin  violations   of,  courts  may,   695. 

Exclusive  contract  between  telephone  companies  legal,  438,  439. 

Federal  Reserve  Board,  duties  under,  712. 

Federal  Trade  Commission,  duties  under,  712. 

Federal  Trade  Commission  Act  not  to  afifect,  712. 

Final  judgment  in  prosecutions  and  Government  Suits  under  Clay- 
ton amendment  prima  facie  binding  in  subsequent  suits,  706, 
707. 

Good  will,  sale  of.  valid,  686,  689. 

Guilt  of  corporation  prima  facie  evidence  of  guilt  of  officer,  715. 

Injunctions  under,  716,  717,  718,  719. 

Intercorporate  relations  illegal,  707. 

Interstate  Commerce  Commission  duty  to  enforce  certain  pro- 
visions, 712. 

Interstate  Commerce  Commission  no  power  to  enforce,  when, 
165,  167. 

Jury  trial,  when  may  be  demanded,  720,  721. 

Known  as   "Sherman   Anti-Trust   Law,"   169. 

Labor  disputes  not  enjoined,  when,  707. 

Labor  organizations  not  prohibited,  707. 

Limitation,  laws  of  state  where  suit  filed  applies  to  suits  for  dam- 
ages, 701. 

Monopolies  prohibited,  693. 

Officers  punishable,   710. 

Parties  to  suits  for  violating,  716. 

Patented  articles,  sale  of,  regulated,  705,  706. 

Penalties  for  violating.  680. 

"Person"  includes  corporation,  702. 

Philippine  Islands.  .\ct  not  to  apply  to,  705. 

Private  persons  may   obtain   injunctive   relief,  716. 

Prohibition  of  resale  prices,  when,  686,  687,  689,  692,  705,  706. 

Property  seized  and  forfeited,  when,  698. 

Punishment  of  corporate  officers,  710,  715. 

Resale  price  fixing  illegal,  686,  687,  689,  692,  705.  706. 

Restraining  orders,  procedure,  697. 

Rule  of  reason  applied,   691. 

Subpoenas  may  l)e  served  on  parties  in  any  dis'trict,  715. 


1046  Generai,  Ixdex. 

[References  are  to  pages.] 

SHERMAN  ANTI-TRUST  AND   CLAYTON  ACTS— Continued. 
Territories,  law  applies  to,  694. 
Trial  by  jury,  720. 
Venue  of  suits  under,  715. 
Violations   of,   considered   in   determining   whether   or   not   a   rate 

is  reasonable,  170,  680. 
Violators  of  not  to  use  Panama  Canal,  519. 
What  combinations  included  in  prohibition  of,  680. 
Witnesses  may  be  required  to  attend  court  in  districts  other  than 

their  residence,  715. 

SHIPPER. 

Application  for  switch  connection,  477. 

Commission  no  power  to  allow  damages  against,  329. 

False  billing  by,  penalty,  561,  562. 

Information  concerninig  shipment  of,  593,  594. 

Instrumentalities  furnished  by  must  be  at  a  reasonable  rate,  594. 

595. 
May  designate   routing,  592,  593. 

Penalty  for  soliciting  or  receiving  rebates,  538,  563. 
Recovery  by,  for  misquoting  a  rate,  when,  135,  342,  536. 
Sleeping  cars,  within  act,  461. 

SOUTHERN   CLASSIFICATION  TERRITORY. 
Limits  defined,  272. 

SPEED  OF  TRAINS. 

Limited  by  state  laws,  36. 

SPOTTING  CARS. 
Defined,  244. 
Not   unlawful,  245. 

SPUR  TRACKS. 

Construction  of  required,  20. 
Included  in  term  "Railroad,"  459. 
Regulation  of,  20. 
To  dock  of  water  line,  545. 

STATES. 

Complaints  by  to  Interstate  Commerce  Commission,  571. 

Exclusive  power  over  intrastate  commerce,  7,  8,  78. 

May  establish  means  for  interstate  transportation,  12. 

May  not  exclude   a  corporation  engaged   in   interstate  commerce, 

12,  13. 
May  in  some  cases  indirectly  regulate  interstate  commerce,  7. 
May  not  require  rates  that  are  confiscatory,  76,  78. 
May  prescribe  rates  for  intrastate  transportation,  73,  74. 
May  regulate   intrastate  commerce,  73,  78. 
May  regulate  the  issuance  of  stocks  and  bonds,  wlien,  91. 
May  require  carriers  to  perform  service,  62. 


Ge^neral  Index.  1047 

[References  are  to  pages.] 

STATE  COURTS. 

May  enforce  carrier's  duty  to  transport,  406,  407. 

May  enforce  orders   of  reparation,   405,  406,  428,  604. 

May  enforce  rights  growing  out  of  safety  appliance  acts  and  Em- 
ployers' Liability  Act,  404,  765. 

May  enforce  the  law  fixing  the  liability  of  initial  carrier,  405, 
406. 

No  jurisdiction  to  enforce  act  to  regulate  commerce  except  when, 
403,  40'5,  406. 

Not  deprived  of  jurisdiction  because  carrier  incorporated  under 
laws  of  Congress,  643. 

STATE  LAWS. 

Injunctions  against,  three  judges  necessary  for  granting  interlocu- 
tory, 110,  641,  642. 
Procedure  to  test  validity  of,  109,  110. 

STATE  LAWS  AFFECTING  INTERSTATE  COMMERCE. 
Demurrage  regulations,  43. 
Fixing  employers'  liability,  40,  57. 
Fixing  penalties  for  failure  to  pay  claims,  60. 
Forbidding  combination  of  carriers,  19. 

Laws  to  promote  security  and  comfort  of  passengers,  31,  53. 
Limiting   or   enlarging   common    law   liability   of   carriers,   44,    54, 

55,  56. 
Long-and-short-haul  law  under,  75,  92,  93. 
Operation  of  trains,  34. 
Quarantine  laws,  104. 
Rate  laws  must  not  discriminate  against  interstate   commerce,  6, 

75,  114,  304,  383. 
Regulating  issuance  of  stocks  and  bonds,  91. 
Regulating  speed  of  trains,  8,  9,  36. 
Regulating  Sunday  trains,  33. 
Regulation  of  carriers  and  employees,  38,  39,  57. 
Requiring  cars  to  be  furnished,  41,  42. 
Requiring  switch  connections,  21,  2?,  24,  25,  29. 
Requiring  trains  to  stop,  8,  15,  36,  37. 
Separate  coaches  for  white  and  negro  races,  50. 
Spur  tracks  and  switches,  when  required,  20. 
When  valid,  7,  9. 

STATE  RATES. 

Not  to  be  applied  to  interstate  shi])nu'nts  by  device  of  rebilling  at 

the  border,  71,  130,  457. 
Not  to   discriminate  against   interstate   rimiiiicrcc,   (l,   75,    114,   304, 

383. 

STEAMSHIPS. 

Ownership  of  Ity  railroads,  when  proliibitcd.  .'i2Ci,  .'{72,  :i7:t,  516. 


1048  General  Index. 

[References  are  to  pages.] 

STOCKS  AND  BONDS. 

Investigation  of  issuance  by  Commission,  641. 
Regulation  of  the  issuance  of  b}^  states,  91. 

STOCK  YARD  TERMINAL  RAILROADS. 
Subject  to  act  to  regulate  commerce,  124. 

STOPPAGE  OF  INTERSTATE  TRAINS. 

\Mien  may  be  required  by  state  laws,  36,  37. 

STORAGE. 

Charges  to  be  printed  and  filed.  520. 
Included  in  term  "transportation,"  459. 
Regulations  affecting,  463. 
Within   one  state  not  subject   to  act,  458. 

STREET  RAILWAYS. 

Inters'tate  within  act  to  regulate  commerce,  460. 

States  may  not  regulate  interstate,  6. 

Through  route  and  joint  rate  not  required  with,  460,  589. 

SUITS. 

Courts    or    complaint    to    Interstate    Commerce    Commission    for 

damages,  405,  548. 
Orders  of  Interstate   Commerce  Commission — - 

Expedition  of,   646,   661. 

Jurisdiction  of,  657. 
Venue  of  under  act  to  regulate  commerce,  656. 

SUNDAY. 

State  laws  requiring  freight  trains  not  to  run  on  valid,  33. 

SUPREME  COURT. 

Appeals    may   be    direct    to,    when,    430,  663. 

Appeals  to  from  interlocutory  order,  when,  433,  659. 

Appeals  to  given  priority   of  hearing,  433,  652. 

Appeals  to  taken  in  thirty  days,  when,  433,  659. 

Appeals  to  when,  not  suspend  order  appealed  from,  433,  652. 

SUSPENSION  OF  INCREASES  IN  RATES. 

The    Interstate    Commerce    Commission    has    power    to,    357,    585, 

586,  898,  899. 
Burden  on  carriers  when  rates  suspended,  358,  587,  588. 

SUSPENSION    OF    ORDERS    OF   INTERSTATE   COMMERCE 
COMMISSION. 
By  the  Commission,  137,  583,  584. 
By  the  courts,  418,  584. 

SWITCH   CONNECTIONS. 

Industrial  railroads,  entitled  to,  314. 

Lateral  branch  line  has  right  to,  135,  312,  477. 

Owner  of  lateral  branch  road  may  petition  for,  312.  477-479. 


General  Index.  1049 

[References  are  to  pages.] 

SWITCH    CONNECTIONS— Co»/n;»rd. 

Power  of  the  Interstate  Commerce  Commission  to  require  car- 
riers  to   make,   312,  477-479. 

Procedure  on  application  to  have  established,  313,  369,  370,  488. 

Required  when  undej:  act  to  regulate  commerce,  313,  477-479. 

Right  to  limited  by  prohibition  against  a  carrier  giving  its  tracks 
or  terminal  facilities,  26,  257,  314,  501-504. 

Under  state  laws,  21. 

With  water  carrier,  315,  316. 


TAP  LINE. 

Defined,  283. 

Exempted  from  Commodities  clause,  284,  476. 

May  legally  obtain  division  of  rate,  283,  284,  315,  483. 

TARIFFS  OF  RATES. 

Commission  may  prescribe  forms  of,  327,  528. 

Evidence  when,  611. 

Mistake  in  giving  shipper  not  relieve  carrier  from  charging  full 
rate,  296,  297,  328,  342,  536. 

Must  be  printed,  posted  and  maintained,  294,  296,  298,  327,  520. 

Names  of  carriers  parties  to  must  be  specified,  527. 

No  carrier  shall  participate  in  interstate  commerce  without  filing, 
328,  528. 

Points  to  which  apply  must  be  stated,  520,  526. 

Rebate  from  defined,  prohibited  and  punished,  538. 

Regulation  as  to  printing  and  posting  for  freight  moving  from 
one  to  another  point  in  United  States  through  foreign  coun- 
tries, 526. 

Retroactive  efifect  not  to  be  given  to,  535. 

Rule  that  must  be  printed  applies  to  that  part  of  an  export  or 
import  movement  which  is  over  rail  carriers,  294. 

Shall  not  be   changed  without   notice,   327,   373,   527. 

TAXATION. 

How  far  state  laws  for  taxes  afifecting  interstate  commerce  are 
valid,  106-108. 

TAXICABS. 

States  may  regulate  parking  of,  thougii  engaged  in  interstate 
commerce,  44. 

TELEGRAPH  COMPANIES. 

Charges  shall  be  just  and  reasonaljle,  472. 

Contracts  to  be  filed,  667. 

Exchange  of  passes  or  franks  with  common  carrier,  473. 

Exchange  of  services  with  common   carrier,  473. 

Government-aided,  664. 


1050  Ge;neral  Index. 

[References  are  to  pages.] 

TELEGRAPH  COMPANIKS—Coutinurd. 
Linemen  of,  passes  to,  473. 
Messages,  classification  of,  471. 

Reports  to  Interstate  Commerce  Commission,  667. 
Rule  as  to  misquoting  rates  not  applicable  to,  472. 
State  regulation  of,  49. 
Subject  to  act,  50,  451. 

TELEPHONE. 

States  may  compel  a  railroad  to  install,  17. 

TELEPHONE  COMPANIES. 

Charges  shall  be  just  and  reasonable,  472. 

Exchange  of  passes  or  franks  with  common  carrier,  473. 

Exchange    of  services   with   common   carrier,   473. 

Linemen  of,  passes  to,  473. 

Messages,  classification  of,  471. 

State   regulation   of,   49. 

Subject  to  act,  50;  451. 

TERMINAL  CHARGES. 

Where  for  part  of  interstate  transportation,  subject  to  regulation 
by  Interstate  Commerce  Commission,  18,  123,  124,  459. 

TERMINAL  FACILITIES. 

Included  in  term  "railroad,"  459. 

Use  of,  by  another  carrier.  26,  257,  314,  501,  503,  504. 

TERMINAL  RAILROADS. 

Subject  to  regulation  as  other  roads,  18,  19,  123. 
Valuation  of,  615. 

TERRITORIES. 

Alaska  a  territory  within  the  act  to  regulate  commerce,  131,  457. 
Complaints  by  commissioners  of,  571. 
Transportation  within,  or  to  or  from,  451. 
Valuation  of  carrier's  property  in,  G17. 

TESTIMONY. 

Acts  relating  to  obtaining,  639. 

TEXAS. 

Common  point  groups,  190. 
Special  freight  classification  in,  272. 

THROUGH  RATES. 

Amended    fourth    section    makes    illegal    higher    joint    rates   than 

the  sum  of  the  locals,  207,  504. 
Called  aggregate  of  intermediate  rates,  207,  504. 
Commission  may  relieve  against  rule,  219,  513. 
Should  ordinarily  be  less  than  sum  of  locals,  204. 
Sum  of  locails  constitute  legal,  when,  204,  265. 
That  sum  of  intrastate  rates  less  than,  not  illegal,  207,  210. 


Generai,  Index.  1051 

[References  are  to  pages.] 

THROUGH  ROUTES  AND  JOINT  RATES. 

Carriers  not  compelled  to  give  use  of  their  tracks  or  terminal 
facilities,  26,  257,  314,   317.  503,   504. 

Commission  may  fix  division  of  joint  rates,  32,  211,  319,  584. 

Commission  may  require  establishment  of,  32,  211,  316. 

Electric  railways  entitled  to,  319. 

Indemnity  may  be  required  of  irresponsible  carrier  before  .order- 
ing, 27,  212. 

May  not  compel  a  carrier  to  surrender  its  traffic  when  it  has  a 
line  for  the  through  route,  212,  591. 

May  now  be  required  although  other  reasonable  routes  exist, 
317,  318,  589,  590. 

May  require  with'  water  line,  212,  259.  316,  546,  590. 

Not  required  under  old  law  when  a  reasonable  already  exists,  211, 
212. 

Procedure  on  application  to  have  established,  373,  374,  387. 

Railroads  required  to  unite  in  one  national  system,  318,  319. 

States  may  require  to  serve  intrastate  commerce,  32. 

THROUGH  SHIPMENT. 

An  indispensable  element  of  a  contract  therefor,  129,   130. 

Substance  and  form  of  billing  controls,  130,  131. 

When  broken  second  movement  may  be  intrastate,   130. 

TICKET  SCALPERS. 

Business  may  be  prohibited,  64. 

TON-MILE  RATE. 

Gross  ton  mile  defined,  178. 

Net  ton  mile  defined,  178. 

Ordinarily  the  greater  the  distance  the  less  the  rate  per  ton  mile, 

176-178,  466,  483,  490. 
The  rule  not  without  exceptions,  177. 

TRACKS. 

Included  in  term  "railroad,"  451. 

To  dock  of  water  carrier,  545. 

Use  of,  by  another  carrier,  26,  257,  314,  501.  .503,  .504. 

TRANSIT  REGUL.\TIONS. 
Defined,  281. 

Identity  of   commodity   from  point   of  origin   to   final   destination 
the  ideal,  282;  &  See  Maley  &  Werts  v.  L.  &  N.  R.  Co.,  36  I. 
C.  C.  657. 
Must  be  accorded  without  discrimination,  282. 
Not  unlawful,  282. 

TR.\lN  LOADS. 

Rate  on,  different  per  100  pounds,  than  on  carload,  illegal,  203, 
268. 


1052  General  L\dex. 

[References  are  to  pages.] 

TRAINS. 

States  may  regulate  speed  of,  8,  9,  36. 

States   may   require   operation   of,   when,   34,   3.5. 

States  ma,y  require  to  stop  at  particular  stations,  8,  15,  35,  37. 

States  may  require  time  due  to  arrive  to  be  posted,  53. 

TRANSPORTATION. 

Charges  for  must  be   reasonal^le,  463. 

Facilities  for  may  be  required  by  states,   12,   13. 

Free,    prohibited,    when,    68,    472,    631,    632. 

To  and  from  adjacent  foreign  country,  526. 

What  included  in  act  to  regulate  commerce,  126,  127,  459. 

TRANSPORTATION  OF  EXPLOSIVES  ACT. 
Exceptions  to  provisions,  754. 
Explosives  not  to  be  carried,  755. 
Marking  packages,  755. 
Passenger  vehicles,  754. 
Penalty  for  violation,  756. 
Regulations  by  Commission,  755. 

TRANSPORTATION   TO    AND    FROM    ADJACENT    FOREIGN 
COUNTRY. 
When  controlled  by  act   to   regulate   commerce,   451,  526. 

TRAP  CAR  SERVICE. 
Defined,  242. 
When   legal,  243. 

TRUSTS  AND  MONOPOLIES. 
Act  to  prevent,  680-722. 

Act  to  prevent  applies  to  carriers,  437,  438. 
Power  of   Interstate   Commerce   Commission   under   Clayton   Act, 

712. 
Violation    of   act    against    considered    in    determining    reasonable- 
ness of  rates,  170,  680.      , 

TWENTY-EIGHT  HOUR  LAW. 
Act  constitutional,  673. 
Carrier  given  a  lien  for  feed,  675. 
Called   28   hour   law,  930. 
Feeding  at   owner's   expense.   675. 

"Knowingly  and  wilfully"  used  in  act  defined,  674,  676. 
Law  prior  to  1906,  673. 
May,  b}^  written  request  of  owner,  extend  time  to  36  hours,  672- 

674. 
Not   apply   where   animals   have   proper   food   and   opportunity   to 

rest,  676. 
Not  'to  be  confined  while  being  transported  longer  than  28  hours, 

672. 


General  Index.  1053 

[References  are  to  pages.] 

Penalty  for  each  shipment,  676. 
Penalties  for  violating,  675,  676. 
Penalties,   suit   for  a  civil   action,   676. 
Sheep  need  not  be  unloaded  at  night,  673. 

TWO  FOR  ONE  RULE. 
Stated,  495,  904. 

u 

Uniform    Demurrage    Rules    Discussed,   869,    895,   896. 


VALUATION  OF  CARRIERS'  PROPERTY. 

Analysis  of  methods  to  be  reported,  361,  615,  616. 
By  Commission,   148,  151,  361,  615,  616. 
Changes  in,   carriers  required  to  make  report,  617. 
Cooperation  by  carriers  in,  required,   617. 
Experts  for  work,  Commission  may  employ,  615. 
Extensions  or  improvements,  361. 
Final — 

Efifect,  363,  618. 

If  no  protest  filed  within  30  days,  618. 

May  be   modified   or  rescinded,   617,   619. 
Hearings  before  final,  618,  619. 
Procedure,  616,  618. 
Reports  to  Congress,  617. 
Revision   or   correction,   361. 
Tentative,  618. 
What  valuation   reports  shall   show,  615,  616. 

VALUE. 

False   statement   by   shipper,  562. 

VALUE  OF  CARRIERS'  PROPERTY. 

As  a  basis  for  rates,  78,  145,   146,  217. 

Benefits  of  knowing,  361. 

Cost  of  property  a  usable  basis  for  determining  value  until  valua- 
tion is  completed,  148. 

Difference  in  consideration  of  by  courts  and  by  quasi-legislative 
tribunals,  79,   151. 

Duty  of  Interstate  Commerce  Commission  to  (letcrniinc,  148, 
150,   615,   620. 

Earnings  invested   must   be  considered,  81. 

"Fair  value"  defined,  79. 

Fair  value,  how  determined,  80. 

Finality  and  efifect  of  valuation  fouufl  by  the  [nterstatc  Com- 
merce  Commission,   363,   618. 

What  is  a  fair  rate  of  return  on,  81,  82,  83,  84.   147.   149. 


1054  Ge^nerai,  Index. 

[References  are  to  pages.] 

VALUE  OF  COMMODITIES. 

An    important    fact    in    determining    the    reasonableness    of    rates 

thereon,  158,  159,  163. 
Different   rates    on   the    raw    and   the    manufactured    product,    164, 

165. 
Not   always   practicable   to   differentiate   between    different   values 

on  the  same  species  of  commodity,  160. 

VALUE  OF  SERVICE. 

Considered  in  rate   making,   158,   159,   160. 

VENUE. 

In  prosecutions  for  rebating,  538. 

In  suits  on  an  award  of  damages.  404,  604,  606. 

In  suits  under  act  to  regulate  commerce,  433,  656. 

Of  suits  to  enjoin  an  illegal  advance.  417. 

Under  anti-trust  acts,  715. 

VESSELS. 

Regulation   of,  by   States  when,   101. 

w 

WAR. 

Military  traffic   given   preference   in   time   of,  535. 

WATER  CARRIERS. 

Right  of  railroads  to  own  restricted,  326,  516,  934,  935. 
State  regulation  of,  98,  99,  100. 

When  and  where  not  within  act  to  regulate  commerce,   132,  316. 
When     engaged     in     transportation    through    Panama    Canal    or 
otherwise,  316,  317,  544. 

WATER  COMPETITION. 

Rates  reduced  by  not  increased,  when,  326,  513,  514. 

WATER  LINE. 

Common   control,  etc.,  with  rail  line,  132. 

Interchange  of  traffic  with  rail  line,  545,  546,  547. 

Physical  connection  with  rail  line,  545. 

Proportional  rate  from,  546. 

Railroad  not  to  have  interest  in  competing,  326,  327,  516. 

Rates  to  be  filed  with  Commission,  when,  519. 

Reduction  in  rail  rates  to  meet  competition  of,  335,  513,  514. 

Subject  to  act,  when,  316,  544-547. 

Through  route  and  joint  rate,  212,  259,  316,  546. 

Transportation  wholly  by,  451,  590. 

Via   Panama   Canal,   316,   317,   544.   547. 

Violators  of  Sherman  Act  not  to  use  Panama  Canal,  519 


General  Index.  1055 

[References  are  to  pages.] 

WEIGHING,  FALSE. 

By  carrier,   misdemeanor,  561. 

By  shipper,  fraud,  a  misdemeanor,  563.  * 

WESTERN  CLASSIFICATION. 

Territory   included   in    defined,   372. 

WHARF  OWNERS. 

May  select  to  whom  use  of  is  granted,  256. 

WHITE  SLAVE  LAW. 
Constitutional,  4. 

WIRELESS  CABLE  COMPANIES. 

Subject  to  act  to  regulate  commerce,  451. 

WITNESSES. 

All  existing  laws  relating  to,  to  apply  under  act  to  regulate  com- 
merce, 639. 
Anti-trust  act,  in  suits  under,  715. 
Commission  may  require  attendance  of,  396.  569. 
Courts   may    compel   attendance   of,   396,   410,   645. 
Courts  may  compel  production  of  books,  etc.,  410,  645. 
Evidence  may  criminate,  shall  not  excuse,  410,  645,  669,  670. 
Fees,  396,  570. 

Immunity  of,  411,  548,  569,  645,  646,  669.  670,  671. 
Immunity  of,  in  action  for  damages,  548. 
May  be  subpoenaed  in   accident  investigations,   745. 
Passes  to,  472-476. 

Special  agents  or  examiners  of  Commission  may  examine,  626. 
Subpoenas  for  by  Commission,  396. 

WORDS  AND  PHRASES. 
Accident,  443,  885. 
Act  of  God,  443,  885. 

A    just    equality    of   opportunity    for    shipper    and    locality    is    re- 
quired l)y  law,  501. 
All  rail,  897. 
Anli-trust   laws,   704. 
Association,  573. 
Casualty,  443. 
Commerce,  3,  705,  725. 
Common  carrier,  459,  460. 
Connected  with   transportation,  595. 
Conspiracy,  682. 
Contemporaneous,  238. 

Continuously  operated  night  and   day,  443,  885. 
Corporation,  725. 


1056  General  Index. 

[References  are  to  pages.] 

WORDS  AND  FURASZS— Continued. 
Discrimination,   486. 
Documentary  evidence,  725. 
Employees,   757,   766. 
Emploj'ees  on  express  cars,  476. 
Existing   specified    service    by   water,    578. 
Fair  return,  225. 
Fair  value.  80. 
Ferry,   94. 

Give  the  use  of  tracks,  etc.,  26,  257,  314,  501,  503,  504. 
Goods  of  the  same  description,  236. 
In  any  week,  443. 
Integrity  of  through   rate,   525. 
Knowingly  and  wilfully,  674,  676. 
Lateral   branch,  line,   312. 
Lawful,  471. 
Legal,  471. 

Legislative  power,  310. 
Like  kind  of  traffic,  238. 
Line,  263,  324. 
May  compete,  518. 
Milling  in  transit,  273. 
Misfortune,  885. 
Missionary  rates,   181. 
Monopoly,   688,   689. 
Off  duty,  884. 

Official  classification  territory.  272. 
On   duty,   884. 

Operated  only  during  the  day  time,  443,  885. 
Or  otherwise,  in  Panama  Canal  Act,  213,  316. 
Or  otherwise,  in  provision  for  divisions  of  rates,  585. 
Peddler  cars,  243,  244. 
Penalty   rates,  205. 
Person,   702,   705. 
Proportional  rate,  205,  206,  891. 
Railroad,  14,  459,  460,  766. 
Rate  breaking  system,   194,  195. 
Rebate,  304,  541. 
Rebilling,  275,  276. 
Reshipping,  275,  276. 

Revenue  per  net  ton  and  gross  ton  mile,  178. 
Rule  of  reason,  691. 

Similar   circumstances   and   conditions,   238,   480. 
Spotting  cars,   244,   245. 

Substantially   similar   circumstances   and   conditions,   480. 
Tap  line,  283. 
Terminal  roads,  18. 


General  Index.  1057 

[References  are  to  pages.] 

WORDS  AND   PHRASES— Co;(/i;n(.'rf. 
Through   the   Panama   Canal,   518. 
Through  routes  and  joint  rates,  462. 
Towers,   offices,  places  and   stations.  442,  884. 
Trap  car  service,  242. 
Transportation,   322,  459,   766. 
Two  for  one  rule,  495,  904. 
Under    substantially    similar    circumstances    and    conditions,    237, 

340,  480,  483,  486. 
Undue  preference,  491. 
Unjust,  491. 

Unjust  discrimination,  486. 
Unreasonable,  491. 
Western  classification,  272. 
Wholly  by  railroad,  457. 

z 

ZONES. 

Prescribed  in  making  rates,  191. 

Used  in  making  rates  for  parcel  post,  192. 

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UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  842  922    7 


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